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.Az NORTH CAROLINA
REGISTER
VOLUME 11 • ISSUE 4 • Pages 181 - 269
May 15, 1996
MAY *'< 1996 1
IN THIS ISSUE
' "" Final Decision Letter
Acupuncture Licensing Board
Administration
:
. Cultural Resources
Environment, Health, and Natural Resources
Human Resources
Justice
Medical Board
Psychologists, Board ofPracticing
Revenue
Soil Scientists, Board for Licensing of
Substance Abuse Professionals Certification
List of Rules Codified
Rules Review Commission
Contested Case Decisions
PUBLISHED BY
The Office ofAdministrative Hearings
Rules Division
PO Drawer 27447
Raleigh, NC27611-7447
Telephone (919) 733-2678
Fax (919) 733-3462
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
Volume 1 1 , Issue 4
Pages 1 8 1 - 269
May 15, 1996
This issue contains documents officially
filed through April 24, 1996.
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601)
PO Drawer 27447
Raleigh, NC 27611-7447
(919) 733-2678
FAX (919) 733-3462
Julian Mann III, Director
James R. Scarcella Sr., Deputy Director
Molly Masich, Director of APA Services
Ruby Creech, Publications Coordinator
Teresa Kilpatrick, Editorial Assistant
Jean Shirley, Editorial Assistant
IN THIS ISSUE
I. IN ADDITION
Environment, Health, and Natural Resources
Wildlife Resources Commission 182
Voting Rights Act 181
II. RULE-MAKING AGENDA
Environment, Health, and Natural Resources
Coastal Management 183-187
Environmental Health/Health Services 183-187
Environmental Management 183 - 187
III. PROPOSED RULES
Cultural Resources
USS NORTH CAROLINA Battleship 188
Environment, Health, and Natural Resources
Coastal Resources Commission 190-191
Wildlife Resources Commission 191 - 193
Human Resources
Child Day Care Commission 188-190
IV. TEMPORARY RULES
Administration
State Building Commission . 194 - 196
Human Resources
Medical Assistance 196 - 199
Licensing Boards
Soil Scientists, Board for Licensing of 200 - 204
V. APPROVED RULES
Environment, Health, and Natural Resources
Health Services 209 - 21
1
Human Resources
Medical Assistance 207 - 208
Medical Care Commission 206 - 207
Justice
Attorney General/Company Police 208 - 209
Licensing Boards
Acupuncture Licensing Board 220 - 221
Medical Board 221-236
Psychologists, Board of Practicing 236 - 238
Substance Abuse Professionals Certification 238 - 247
Revenue
Individual Income Tax Division 211 - 212
Sales and Use Tax 212-220
VI. LIST OF RULES CODIFIED 248-256
VII. RULES REVIEW COMMISSION 257-264
VIII. CONTESTED CASE DECISIONS
Index to ALJ Decisions 265 - 268
IX. CUMULATIVE INDEX 1-14
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IN ADDITION
This Section contains public notices that are required to be published in the Register or have been approved by the
Codifier of Rules for publication.
U.S. Department of Justice
Civil Rights Division
DLP:DHH:RA:emr:lrj Voting Section
DJ 166-012-3 P.O. Box 66128
96-0523 Washington, D.C. 20035-6128
April 5, 1996
David A. Holec, Esq.
City Attorney
P.O. Box 1388
Lumberton, North Carolina 28359
Dear Mr. Holec:
This refers to the January 22, 1996, annexation to the City of Lumberton in Robeson County, North Carolina,
submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your
submission on February 5, 1996.
The Attorney General does not interpose any objection to the specified change. However, we note that the
failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. See
the Procedures for the Administration of Section 5 (28 C.F.R. 51.41).
Sincerely,
Deval L. Patrick
Assistant Attorney General
Civil Rights Division
By:
Elizabeth Johnson
Acting Chief, Voting Section
11:4 NORTH CAROLINA REGISTER May 15, 1996 181
IN ADDITION
North Carolina Wildlife Resources Commission
512 N. Salisbury Street, Raleigh. North Carolina 27604-1188, 919-733-3391
Charles R. Fullwood, Executive Director
PROCLAMATION
Charles R. Fullwood, Executive Director, North Carolina Wildlife Resources Commission, acting pursuant to North
Carolina General Statute §1 13-292 (clj and authority duly delegated by the Wildlife Resources Commission, hereby declares
that effective at 12:00 midnight on Wednesday, April 17, 1996, the season for harvesting striped bass by hook-and-line is
closed in all inland and joint waters of the Roanoke River Striped Bass Management Area.
The Roanoke River Striped Bass Management Area is defined as the inland and joint fishing waters of the Roanoke
River, extending from its mouth to Roanoke Rapids Dam and all tributaries of the Roanoke River, including but not limited
to, the Cashie. Middle, and Eastmost Rivers and their tributaries.
This proclamation shall remain in effect until a new proclamation reopening the described waters or portions thereof
for striped bass fishing is issued.
NOTES:
a) This Proclamation is issued under the authority of N.C.G.S. §§1 13-132; 1 13-134; 1 13-292; 1 13-304: and
113-305.
b) [he striped bass harvest quota for the hook and line sport fisher} ot the Roanoke Rr.er Striped Bass
Management .Area has been met. and the area is closed for striped bass fishing until reopened as prescribed
herein.
c) .All striped bass regardless of condition taken subsequent to the effective date and time of this Proclamation
shall be immediately returned to the waters where taken and no striped bass may be possessed.
d) Any person who violates this Proclamation also violates applicable law and is subject to the sanctions
provided by law.
NORTH CAROLINA WILDLIFE RESOURCES COMMISSION
by: Charles R. Fullwood Date: 04/10/96
Executive Director
182 NORTH CAROLINA REGISTER May 15, 1996 11:4
RULE-MAKING AGENDA
TITLE ISA
DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES
This supplemental agenda will serve as the notice of rule-making proceedings for the following rule-making bodies
from May 15, 1996 through July 15, 1996:
Environmental Management Commission - to rules codified in 15A NCAC 2;
Coastal Resources Commission - to rules codified in 15A NCAC 7;
Commission for Health Services - to rules codified in 15A NCAC 18A;
This agenda was previously published in 10:18 NCR 2317-2397 in it's entirety.
DEHNR Regulatory Agenda Index - April 24, 1996
COASTAL MANAGEMENT
APA# SUBJECT RULE CITATION #
E1951 General Use Standards for Hazardous
Areas
15A NCAC 7H .0306
E1952 General Permits (General Conditions) 15A NCAC 7H .1104, .1204, .1304, .1404, .1504,
.1604, .1704, .1804, .1904, .2004 and .2104
E1953 Reserve Components:
Reserve Use Requirements
15A NCAC 70 .0105, .0202
ENVIRONMENTAL HEALTH/ENV. HEALTH SERVICES
APA# SUBJECT RULE CITATION #
H6250 Child Nutrition Programs 15A NCAC 21 J .0101 (This rule may be filed as a
temporary rule)
H6251 Child Nutrition Programs 15A NCAC 21 I .0101
H6259 Rules Governing the Sanitation of
Lodging Places
15A NCAC 18A .1805
ENVIRONMENTAL MANAGEMENT/AIR OUALITY
APA# SUBJECT RULE CITATION #
E1838 Address Correction 15A NCAC 2D .0104, .0105, .0501, .0953 & .1305
15A NCAC 2Q .0104, .0307 & .0521
El 937 Incinerators 15A NCAC 2D .1204 and .1206
El 939 Visible Emissions 15A NCAC 2D .0521
DEHNR Regulatory Agenda - April 24, 1996
APA #: E1838
SUBJECT: Address Correction
RULE CITATION #: 15A NCAC 2D .0104, .0105, .0501, .0953 & .1305; 2Q .0104, .0307 & .0521
AUTHORITY: G.S. 150B-21.6; 143-215. 3(a)(1); 150B-21.2(b); 143-215. 107(A)(3), (7); 143-215. 107(a)(5);
119-26;
143-215.108; 143-215.109; 143-215.4(b); 143-215.3(a)(l), (3); 143-215. 107(a)(10); 143-215.111(4)
DIVISION/SECTION: ENVIRONMENTAL MANAGEMENT/ATR QUALITY
DIVISION CONTACT: Thomas Allen
DIVISION CONTACT TEL#: (919)733-1489
DATE INITIATED: 4/3/96
DURATION OF RULE: Permanent
TYPE OF RULE:
STAGE OF DEVELOPMENT: Concept Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
To change the mailing address for the Air Quality Section.
SCOPE/NATURE/SUMMARY :
11:4 NORTH CAROLINA REGISTER May 15, 1996 183
RULE-MAKING AGENDA
The Air Quality Section has a new post office box. Eight rules need to be amended to correct the post
office box. These rules are 15A NCAC 2D .01», .0105, .0501. .0953, and .1305 and 2Q .0104, .0307,
and .0521.
APA #: E1937
SUBJECT: Incinerators
RULE CITATION #: 15A NCAC 2D .1204 and .1206
AUTHORITY: G.S. 143-215. 3(a)(1): 143-215. 107(a)(4), (5); 143-215. 107(a)(5)
DIVISION/SECTION: ENVIRONMENTAL MANAGEMENT/AIR QUALITY
DIVISION CONTACT: Thomas Allen
DIVISION CONTACT TEL#: (919)733-1489
DATE INITIATED: 4/3/96
DURATION OF RULE: Permanent
TYPE OF RULE:
STAGE OF DEVELOPMENT: Concept Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
To clarify that temperature measuring devices are required to have a quality assurance program and to
eliminate the primary chamber temperature requirement for medical waste incinerators.
SCOPE/NATURE/SUMMARY :
15A NCAC 2D .1204, Reporting and Recordkeeping, requires "monitoring devices and systems" to have
a quality assurance program under Paragraph (d). While 15A NCAC 2D .1204(d) only uses the phrase
"monitoring device and systems", it was the original intent that this phrase include and be synonymous
with"measuring and recording device." (Paragraph (a) of this Rule requires continuous temperature
measuring and recording devices.) This Rule needs to be revised to clarify this intent.
Under 15A NCAC 2D .1206, Operational Standards, the primary chamber of a medical waste incinerator
is required to be at least 1200 degrees fahrenheit. There is some ambiguity whether material can be loaded
into the incinerator and the primary chamber brought up to 1200 degrees fahrenheit or the primary chamber
is to be at 1200 degrees fahrenheit before any material is loaded. The temperature requirements in the air
quality rules for medical waste incinerators come from solid waste management rules. The temperature
requirements are intended to be the same as those in solid waste management rules, so the owner or
operator of the incinerator would have only one set of temperature requirements to meet. Although the
primary chamber temperature serves a solid waste management purpose, it does not serve any air quality
purpose. To eliminate the confusion that the primary chamber temperature requirement has caused in the
air quality rules, it should be removed. (The rule will retain the requirement that gases in the secondary
chamber are subject to at least 1800 degrees fahrenheit for least one second, which ensures that proper aii
pollution control is achieved.)
APA #: E1939
SUBJECT: Visible Emissions
RULE CITATION #: 15A NCAC 2D .0521
AUTHORITY: G.S. 143-215. 3(a)( 1); 143-215. 107(a)(5)
DIVISION/SECTION: ENVIRONMENTAL MANAGEMENT/AIR QUALITY
DIVISION CONTACT: Thomas Allen
DIVISION CONTACT TEL#: (919)733-1489
DATE INITIATED: 4/3/96
DURATION OF RULE: Permanent
TYPE OF RULE:
STAGE OF DEVELOPMENT: Concept Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
To use consistent terminology in the visible emission rule and possibly change the opacity limit.
SCOPE/NATURE/SUMMARY :
15A NCAC 2D .0521. Control of Visible Emissions, uses a different phrase to describe pre-July 1, 197
sources and post July 1, 1971 sources. The pre-July 1, 1971 phrase is "for sources existing as of July 1
1971." The post July 1, 1971 phrase is "for sources established after July 1, 1971." The use of tw
184 NORTH CAROLINA REGISTER May 15, 1996 11:
RULE-MAKING AGENDA
different words has lead to confusion. The same word should be used in both phrases. Other related
issues also need to be clarified. Should the date be the date that the source was manufactured or should
it be the date that the source was originally installed at the facility? There are several options. One is to
rewrite the phrases to read "for sources manufactured as of July 1, 1971" and "for sources manufactured
after July 1, 1971." Another is to rewrite the phrases to read "for sources located at the facility as of July
1, 1971" and for sources located at the facility after July 1, 1971." Another possible option would be to
eliminate the date altogether and require all sources to meet a 20% opacity standard.
APA #: E1951
SUBJECT: General Use Standards for Ocean Hazardous Areas
RULE CITATION #: 15A NCAC 7H .0306
AUTHORITY: G.S. 113A-107; 113A-1 13(b)(6); 113A-124
DIVISION/SECTION: COASTAL MANAGEMENT
DIVISION CONTACT: Preston Pate
DIVISION CONTACT TEL#: (919)726-7021
DATE INITIATED: 4/23/96
DURATION OF RULE: Permanent 4/1/97
TYPE OF RULE:
STAGE OF DEVELOPMENT: Concept Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
Response to Rules Review Commission Objections.
SCOPE/NATURE/SUMMARY :
The rules involved are broadly worded to apply to all types of development on the oceanfront. The
proposed changes will make some of them clearer and repeal those that are considered unnecessary.
APA #: El 952
SUBJECT: General Permits (General Conditions)
RULE CrTATION #: 15A NCAC 7H .1104, .1204, .1304, .1404, .1504, .1604, .1704, .1804, .1904, .2004
and .2104
AUTHORITY: G.S. 113A-107; 113A-107(a); 113A-107(b); 113A-113(b); 113A-118.1; 113A-124; 113-229(cl)
DIVISION/SECTION: COASTAL MANAGEMENT
DIVISION CONTACT: Preston Pate
DIVISION CONTACT TEL#: (919)726-7021
DATE INITIATED: 4/23/96
DURATION OF RULE: Permanent 4/1/97
TYPE OF RULE:
STAGE OF DEVELOPMENT: Concept Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
Response to Rules Review Commission Objections.
SCOPE/NATURE/SUMMARY :
Existing general permits all have clauses explaining the discretion staff has to withhold using a general
permit to approve development upon finding the potential for significant impacts to the environment,
historic resources, etc. The RRC has objected to current wording of the paragraphs providing such
discretion and is asking that the rules be more clearly worded. The proposed change will provide that
clarity.
APA #: El 953
SUBJECT: Reserve Components: Reserve Use Requirements
RULE CITATION #: 15A NCAC 70 .0105, .0202
AUTHORITY: G.S. 113-3; 113-8; 143B-10
DIVISION/SECTION: COASTAL MANAGEMENT
DIVISION CONTACT: Rich Shaw
DIVISION CONTACT TEL#: (919)733-2293
DATE INITIATED: 4/23/96
DURATION OF RULE: Permanent 4/1/97
NORTH CAROLINA REGISTER May 15, 1996 185
RULE-MAKING AGENDA
TYPE OF RULE:
STAGE OF DEVELOPMENT: Draft Rule Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
Two new coastal reserve sites have been acquired by the state for inclusion in the NC Coastal Reserve.
Neither of these sites is listed under the existing description of reserve components in Subchapter 70. This
amendment adds these two sites to be covered by the NCAC rules governing coastal reserve sites.
SCOPE NATURE SUMMARY :
The purpose of these rules is to add the names of two sites that have been acquired and approved for
designation as part of the NC Coastal Reserve. A second change will amend one of the current general
use standards to clarify that incompatible uses are any fishing, hunting or trapping activities that are
prohibited by both state and local regulations. Heretofore, the rule referred only to used prohibited by state
regulations.
APA #: H6250
SUBJECT: Child Nutrition Programs
RULE CITATION #: 15A NCAC 21J .0101
AUTHORITY: G.S. 130A-29
DIVISION/SECTION: MATERNAL-CHILD HEALTH
DIVISION CONTACT- Alice Lenihan
DIVISION CONTACT TEL#: (919)715-0636
DATE INITIATED: 4/17/96
DURATION OF RULE: Temporary 6/10/96
TYPE OF RULE:
STAGE OF DEVELOPMENT: Concept Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
Pursuant to House Bill 229 (Continuation Budget Operations Appropriations Act of 1995). the 16 personnel
positions in the Department of Public Instruction that have responsibility in the areas of the federal Child
andAdult Care Food Program and the Summer Food Sen ice Program are transferred from the Department
of Environment, Health, and Natural Resources, effective October 1. 1995. Adoption of these regulations
is required for the continued administration of these two programs by the Department of Environment,
Health, and Natural Resources, Division of Maternal and Child Health.
SCOPE/NATURE/SUMMARY :
Proposal is to adopt and incorporate by reference the Federal Regulations for the Child and Adult Care
Feeding Program and Summer Feeding Program. The administration of these programs was transferred
from the Department of Instruction (DPI) to Department of Environment. Health, and Natural Resources,
effective 10/1/95. DPI did not have APA Rules for the programs.
These rules may be filed as temporary rules.
APA #: H6251
SUBJECT: Child Nutrition Programs
RULE CITATION #: 15A NCAC 211 .0101
AUTHORITY: G.S. 130A-29
DIVISION/SECTION: MATERNAL-CHILD HEALTH
DIVISION CONTACT: Alice Lenihan
DIVISION CONTACT TEL#: (919)715-0636
DATE INITIATED: 4/17/96
DURATION OF RULE: Permanent 4/1/97
TYPE OF RULE:
STAGE OF DEVELOPMENT: Concept Stage
GOV LEVELS AFFECTED: None
SCOPE 'NATURE/SUMMARY :
Proposal is to adopt and incorporate by reference the Federal Regulations for the Child and Adult Care
Feeding Program and Summer Feeding Program. The administration of these programs was transferred
from the Department of Public Instruction (DPI) to the Department of Environment. Health, and Natural
186 NORTH CAROLINA REGISTER May 15, 1996 11:4
RULE-MAKING AGENDA
Resources, effective 10/1/95. DPI did not have APA Rules for the programs.
APA #: H6259
SUBJECT: Rules Governing the Sanitation of Lodging Places
RULE CITATION #: 15A NCAC 18A .1805
AUTHORITY: G.S. 130A-248
DIVISION/SECTION: ENVIRONMENTAL HEALTH/ENV. HEALTH SERVICES
DIVISION CONTACT: Malcolm Blalock
DIVISION CONTACT TEL#: (919)715-0929
DATE INITIATED: 4/24/96
DURATION OF RULE: Permanent 4/1/97
TYPE OF RULE:
STAGE OF DEVELOPMENT: Draft Rule Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
Rule 15A NCAC 18A .1805 (1) needs the word "places" changed to "establishment" in order for all rules
to have consistent wording. This change was inadvertently left out during the previous rule process.
SCOPE/NATURE/SUMMARY :
This rule governs the sanitation of lodging places.
n-4 NORTH CAROLINA REGISTER May 15, 1996 187
PROPOSED RULES
TITLE 7 - DEPARTMENT OF CULTURAL
RESOURCES
Notice is hereby given in accordance with G.S.
150B-21.2 that the USS NORTH CAROLINA
Battleship Commission intends to amend rules cited as
7 NCAC 05 .0202 - .0203, .0207 and repeal .0204.
Proposed Effective Date: April 1, 1997
Instructions on How to Demand a Public Hearing
(must be requested in writing within 15 days of notice):
Provide written request within fifteen (15) days of
publication of this notice to: Director, USS NORTH
CAROLINA Battleship Memorial, P.O. Box 480.
Wilmington, NC 28402-0480.
Reason for Proposed Action: Due to retirement of
the Sound and Light Show after 30 years of production
and minor modifications to the hours of operation of
the Memorial and required ratio of chaperones to
students.
Comment Procedures: Provide comments in writing
to the Director. USS NORTH CAROLINA Battleship
Memorial, P.O. Box 480, Wilmington, NC 28402-
0480. Comments must be submitted no later than 30
days after publication of this notice.
Fiscal Note: These Rules do not affect the expendi-tures
or revenues of state or local government funds.
student for organized school groups in grades kindergarten
through 6, and three dollars (S3. 00) per student for
organized school groups in grades 7 through 12.
(b) There is no charge for children under 6.
(c) Classroom teachers, aides, and chaperones accompa-nying
students in class field trips will be admitted without
charge at the rate of one teacher 'aide- chaperone for each
30 K) students.
(d) Tour groups under auspices of bona fide travel
agents will be offered a 20 percent discount. Tour direc-tors
and drivers will be admitted without charge.
(e) Any organized group of 20 or more will be offered
a 10 percent discount when tickets are purchased by a
single source.
Authority G.S. 143B-73.
.0204 SOUND AND LIGHT SHOW
(a) The admission pric e for th e sound and light show Qt
the Battleship L.S.S. North Carolina is three dollars and
fifty cents (S3. 50) for adults age 12 and over and one
dollar and sev e nty fiv e c e nts (Si. 75) for children age 6
through 1 1
.
fb)
—
There is no charge for children under 6 years of
(c) Tour groups unde r th e auspice s of bona fid e trav e l
age nts will be offe red a 20 pe rc e nt discount.—Tour direo
tors and drivers will be admitted without charge.
(d) Any organized group of 20 or more will be offered
a 10 perc ent discount whe n tick e ts are purchased by a
singl e source .
CHAPTER 5 - L.S.S. NORTH CAROLINA
BATTLESHIP COMMISSION
SECTION .0200 - USE REGULATIONS
.0202 HOURS OF OPERATION
The U.S. S. North Carolina Battleship Memorial
will be open during the following hours:
(1) The memorial will be open every day at 8:00
am;
(2) Closing time will be approximate ly—sunse t
except during-tthnee sutmmrmneerr mmoonntmhss..—Duuurninngg tmhee
summer months when the sound and light show
is being presented, th e ship will close at 8:00
pm. 5:00 pm from September 16 through May
15 and at 8:00 pm from May 16 through Sep-tember
15.
Authority G.S. 143-362: 143B-73.
.0203 ADMISSION PRICES
(a) The admission price for the Battleship U.S.S.
North Carolina is six dollars ($6.00) for persons age
12 and over, three dollars (S3. 00) for children age 6
through 11. one dollar and fifty cents (Si. 50) per
Authority G.S. 143B-73.
.0207 PARKING LOT
The use of the parking lot, picnic shelter, picnic grove
and grandstand is restricted to those interested in visiting
and viewing the battleship memorial. Its use for overnight
parking is prohibited. Additionally, use of th e parking lot
during such time as the outdoor drama.—"The Immortal
Showboat", is being performed is restricted to individuals
w-he hav e valid tick e t s for the pe rformanc e .
Authority G.S. 143-362: 143B-73.
TITLE 10 - DEPARTMENT OF HUMAN
RESOURCES
Notice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Child Day Care
Commission intends to amend rules cited as 10 NCAC 03
U
.0704 and .0710.
Proposed Effective Date: April 1, 1997
A Public Hearing will be conducted at 4:00 p.m. - 8:00
188 NORTH CAROLINA REGISTER May 15, 1996 11:4
PROPOSED RULES
p.m. on September 4, 1996 at the NC Child Day Care
Commission, Meeting Room, 319 Chapanoke Road,
Suite 120, Raleigh, NC 27603.
Reason for Proposed Action: To recognize the NC
Child Care Credential as an option for a preservice
requirementfor child day care teachers or administra-tors.
Comment Procedures: Comments may be presented
in writing any time before or at the public hearing or
orally at the hearing. Time limits for oral remarks
may be imposed by the Commission Chairman. Any
person may request copies of these Rules by calling
Jeanne Marlowe, Division of Child Development, 319
Chapanoke Road, Suite 120, Raleigh, NC 27603, (919)
662-4535.
Fiscal Note: These Rules do not affect the expendi-tures
or revenues of state or local government funds.
CHAPTER 3 - FACILITY SERVICES
SUBCHAPTER 3U - CHILD DAY CARE
STANDARDS
SECTION .0700 - HEALTH AND OTHER
STANDARDS FOR CENTER STAFF
.0704 PRESERVICE REQUIREMENTS
FOR ADMINISTRATORS
(a) The on-site administrator who has overall
responsibility for planning and administering the child
care program shall meet the following requirements:
(1) Be at least 21 years of age, and be literate;
and
(2) Have either a high school or general educa-tion
diploma; and
(3) Have two years of full-time verifiable child
day care or early childhood experience; or
an undergraduate, graduate, or associate
degree, with at least 12 semester hours in
child development, child psychology, early
childhood education or directly related field;
or a Child Development Associate Creden-tial;
or completion of a community or tech-nical
college curriculum program in the area
of child care or early childhood; or one year
of full-time verifiable child day care or early
childhood experience and have completed
the North Carolina Child Care Credential
course; and
(4) Have verification of having successfully
completed, or be currently enrolled in, 3
quarter hours, or 33 clock hours, of training
in the area of child care program administra-tion;
or, have one year experience perform-ing
administrative responsibilities; or, have one
year experience performing administrative re-sponsibilities
and have another full-time staff
person, who meets Subparagraphs (1) through
(3) of this Paragraph who is responsible for
planning and implementing the daily program at
the center to comply with Sections .0500 and
.0600 of this Subchapter.
(b) The administrator of a child day care program who
does not routinely work on site, or who is responsible for
more than one child day care arrangement, shall have
verification of having successfully completed, or be
currently enrolled in, 3 quarter hours, or 33 clock hours,
of training in child care program administration; or, have
one year experience performing administrative responsibili-ties
and have at least one full-time staff person on site at
each center who meets the requirements of (1) through (3)
of Paragraph (a) of this Rule.
(c) Any person who is at least 21 years old and literate
who was employed as an on-site administrator in a day
care program on or before September 1, 1986, shall be
exempt from the provisions of Paragraphs (a) and (b) of
this Rule.
Authority G.S. 110-91(8); 143B-168.3.
.0710 PRESERVICE REQUIREMENTS FOR
TEACHERS AND AIDES
(a) The teacher-caregiver with responsibility for plan-ning
and implementing the daily program for each group of
children shall be at least 18 years of age, literate, and have
at least one of the following:
(1) A high school or general education diploma and
one of the following:
(A) One year of verifiable experience working
in a child day care center; or
(B) Twenty additional hours of training within
the first six months of employment; or
(C) Successful completion of the Department
of Public Instruction's Child Care Services
Occupational Home Economics Program;
or
(D) A passing grade in at least the equivalent
of four semester hours in child develop-ment
at a regionally accredited college or
univoreity. university; or
(E) Completion of the North Carolina Child
Care Credential course.
(2) A Child Development Associate Credential.
(3) Graduation from a child care or early childhood
curriculum program at a community college or
technical college.
(4) An undergraduate or graduate degree with at
least the equivalent of four semester hours in
child development.
(5) Five years of verifiable experience working in
child day care.
11:4 NORTH CAROLINA REGISTER May IS, 1996 189
PROPOSED RULES
(b) An aide or person responsible to the
teacher-caregiver for assisting with planning and
implementing the daily program shall be at least 16
years old and literate.
Authority G.S. 110-91(8); 143B-168.3.
TITLE 15A - DEPARTMENT OF
ENVIRONMENT, HEALTH, AND
NATURAL RESOURCES
Notice is herebx given in accordance with G.S.
150B-21.2 that the Coastal Resources Commis-sion
intends to amend rule cited as 15A NCAC 7H
.0106. Subject Matter notice was published in the
Register , Volume 10, Issue 16B, page 1921.
Proposed Effective Date: October 1, 1996.
Reason for Proposed Action: Needfor consistent use
and understanding of the term in CRC rules. The term
"structure" is used numerous times in CRC rules but is
not defined in such a way as to apply consistently
throughout all Subchapters of Chapter 7H. It is
proposed to define building, roads, piers, mooring
pilings, breakwaters, etc. as structures.
Comment Procedures: All persons interested in this
matter are invited to send written comments to be
received no later than June 15, 1996. Please mail or
fax comments to Kris M. Horton; DEHNR; NC Divi-sion
of Coastal Management; PO Box 27687; Raleigh.
NC 27611-7687; (919) 733-1495.
Editor's Note: An agency may not adopt a rule that
differs substantially from the text of a proposed rule
published in the Register, unless the agency publishes
the te,xt of the proposed different rule and accepts
comments on the new text.
Fiscal Note: This Rule does not affect the expendi-tures
or revenues of state or local government funds.
Economic impact does not exceed $5 ,000,000.
CHAPTER 7 - COASTAL MANAGEMENT
SUBCHAPTER 7H - STATE GUIDELINES
FOR AREAS OF ENVIRONMENTAL CONCERN
SECTION .0100 - rNTRODUCTION AND
GENERAL COMMENTS
.0106 GENERAL DEFINITIONS
The following definitions apply whenever these
terms are used in this Subchapter: Chapter:
(1) "Normal High Water" is the ordinary extent
of high tide based on site conditions such as
presence and location of vegetation, which has
its distribution influenced by tidal action, and the
location of the apparent high tide line.
(2) "Normal Water Level" is the level of water
bodies with less than six inches of lunar tide
during periods of little or no wind. It can be
determined by the presence of such physical and
biological indicators as erosion escarpments,
trash lines, water lines, marsh grasses and
barnacles.
(3) Unless specifically limited, the term "structures"
includes, but is not limited to. buildings, bridges,
roads, piers, wharves and docks (supported on
piles), bulkheads, breakwaters, jetties, mooring
pilings and buovs, pile clusters (dolphins),
navigational aids and elevated boat ramps.
Authority G.S. 113A-102; U3A-107.
******************
Notice is hereby given in accordance with G.S.
150B-21.2 that the Coastal Resources Commission
intends to amend rule cited as 15A NCAC 7J .0102.
Proposed Effective Date: April 1, 1997.
A Public Hearing will be conducted at 4:00 pm on July
25, 1996 at the Crystal Coast Civic Center, 3505 Arendell
Street, Morehead City, NC 28557.
Reason for Proposed Action: The term "structure" is
used numerous times in CRC rules but is not defined in
such a way as to apply consistently throughout all Subchap-ters
of Chapter 7. This definition of structure is being
deletedfrom 15A NCAC 7J .0102 and moved to 15A NCAC
7H .0106 to provide consistency in Chapter 7.
Comment Procedures: All persons interested in this
matter are invited to attend the public hearing. Hie
Coastal Resources Commission will receive mailed written
comments postmarked no later than July 25, 1996. Any
person desiring to present lengthy comments is requested to
submit a written statement for inclusion in the record of
proceedings at the public hearing. Additional information
concerning the hearing or the proposals may be obtained
by contacting Kris M. Horton, Division of Coastal Manage-ment,
PO Box 27687, Raleigh, NC 27611-7687, (919) 733-
2293.
Fiscal Note: This Rule does not affect the expenditures or
revenues of state or local government funds. Economic
impact does not exceed $5,000,000.
CHAPTER 7 - COASTAL MANAGEMENT
190 NORTH CAROLINA REGISTER May 15, 1996 11:4\
PROPOSED RULES
SUBCHAPTER 7J - PROCEDURES FOR
HANDLING MAJOR DEVELOPMENT
PERMITS: VARIANCE REQUESTS: APPEALS
FROM MINOR DEVELOPMENT PERMIT
DECISIONS: AND DECLARATORY RULINGS
SECTION .0100 - DEFINITIONS
.0102 GENERAL DEFINITIONS
The following definitions apply whenever these
words are used in this Subchapter:
(1) "Areas of Environmental Concern" (AECs)
means geographic areas within the coastal
area which the Coastal Resources Commis-sion
chooses to designate for special envi-ronmental
and land use regulations. The
types of areas which may be designated as
AECs are described in G.S. 113A-113.
Areas which have already been designated
are defined in 15A NCAC 71, "State Guide-lines
for Areas of Environmental Concern."
(2) "Department" (DEHNR) means the North
Carolina Department of Environment,
Health, and Natural Resources.
(3) "Excavation Project" means any moving,
digging, or exposing of bottom materials,
marshland substrate or root or rhizome
matter in the estuarine waters, tidelands,
marshlands and state-owned lakes, regard-less
of the equipment or method used.
(4) "Filling Project" means the placing of any
materials in estuarine waters, tidelands,
marshlands and state-owned lakes so as to
raise the elevation of the area upon which
the material is placed. Structure placement
does not constitute a filling or excavation
project. The placement of shell material
specifically for the purpose of oyster culture
also shall not be considered a filling project.
(5) "Local Management Program" means the
local implementation and enforcement pro-gram
of a coastal city or county that has
undertaken to administer a permit program
for minor development in areas of environ-mental
concern located within such city or
county.
(6) "Local Permit Officer" refers to the locally
designated official who will administer and
enforce the minor development permit pro-gram
in areas of environmental concern and
all parts of the land use plan which the local
government may wish to enforce over the
entire planning area.
(7) "Division" means the Division of Coastal
Management.
(8) "Permit" refers to CAMA major develop-ment
permits, CAMA minor development
permits and dredge and fill permits unless the
context clearly indicates a contrary interpreta-tion.
(9) "Secretary" refers to the Secretary of Environ-ment,
Health, and Natural Resources.
(40) "Structures"—inoludeo.—but io not limited to,
buildings; bridges, piers, wharveo and dooko
(supported on piles): timber breakwaters; moor
ing pilings; pile clusters- (dolphins); navigational
aido; not stakes; or oonorote steel, or wood boat
ramps more than 20 feet long and 10 feet wide .
Authority G.S. 113-229; 113A-116; 113A-117; 113A-118.
******************
Notice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Wildlife Resources
Commission intends to repeal rule cited as 15A NCAC 101
.0001.
Proposed Effective Date: March 2, 1997.
A Public Hearing will be conducted at 10:00 am on June
5, 1996 at the Archdale Building, Room 332, 512 N.
Salisbury Street, Raleigh, NC 27604.
Reason for Proposed Action: To conform to amendments
to G.S. 113-333 pursuant to House Bill 832 Chapter 392,
1995 Session Laws.
Comment Procedures: Interested persons may present
their views either orally or in writing at the hearing. In
addition, the record of hearing will be open for receipt of
written comments from May 15, 1996 through June 14,
1996. Such written comments must be delivered or mailed
to the North Carolina Wildlife Resources Commission, 512
North Salisbury Street, Raleigh, NC 27604-1188.
Fiscal Note: This Rule does not affect the expenditures or
revenues of state or local government funds.
.0001 DEFINITIONS AND PROCEDURES
fa)
—
For th e purposes of this Subchapter, the following
definitions shall apply:
(4) "Best available scientific evidence"—is the
existing biological, chemical, and physical
data on the distribution, status, abundanoe,
and population dynamios of a wild animal
species and on the sufficiency or insufficiency
of the biological and physical features of a
oritioal habitat that have boon collected and
analyzed by competent biologists using objec-tive,
scientific methods .
(3) "Biological and physical features" are the
known parameters and characteristics of a
oritioal habitat nooossary to sustain essential
NORTH CAROLINA REGISTER May 15, 1996 191
PROPOSED RULES
m-lifc
processes of a wild animal species.
"Conservation—of a—protect ed—animal
species" io defined by G,S. 113 331(1).
"Conservation plan" shall be a written
plan developed by the Wildlife Resources
Commission—using—its
—
resources—and
expertise in th e biological and ecological
sciences with input from other agencies
that documents problems in the biological
and physical feature s of a critical habitat
and id entifies possibl e remedi es.
(-A-) The
con servation—p+an
shall
contain the best available scion
tifie evidenc e that forms th e
basis for designation of th e
critical habitat and may contain
recommended—actions—te—be
taken for speci al conservation.
protection, and management of
the critical habitat.
(-B-) The
—
conservation—p+an
—
may
contain more than on e critical
habitat if the threats to th e hab
itats and the endangered and
threatened wild animal species
occupying th em are s imilar.
fG) The conservation plan shall be
available for public review and
comment.
"Critical—habitat"—means—anv
—
habitat
e ss e ntial to th e conservation of a pro '
tected animal species listed as endangered
or threatened in Rule .0003 or .000 4 of
this Subchapte r.
(-A-) Critical—habitat shall—include
areas within the occupied or
potential geographical range of
a prot ected animal species or
other critical areas that contain
or impact the biological and
physical—features es sential to
th e conservation of a protected
animal speci e s and for which
special—con servation,—protec
tion. and management actions
may be required.
(B) Critical habitat shaH net
include the entire occupied or
potential geographical range of
a protect ed animal speci es or
all areas that impact upon a
protected animal species unless
the—best
—
available—
s
cientific
evide nc e indicat es that special
conse rvation.—protection.—and
management of the area or the
entire range is essential to the
conservation of a protected animal
speci es.
f&) Critical habitats designations shall
bo listed in this Subchapter and
shall include an accurate description
of the habitats and the ir boundaries,
the endangered and threat ened wild
animal species occupying the habi
tat s , and the reason and basis for
designation.
(&) "Life processes" are those biological funo
tions of a wild animal species essential to the
health and survival of individual organisms
and perpetuation of a wild animal species.
ffi "Protect ed—animal"—ts
—
de fined—m
—
G.S.
&~
113 331(5).
"Special conservation, protection, and man
agement" are measures that may be taken and
restrictions that may be imposed n ec essary to
preserve or restore the essential biologieal
and physical features of a critical habitat.
&) "Speci e s" means the taxonomie grouping of
wildlife ,—th e sexually—mature members of
which interbreed and reproduce their own
kind
fW- 'Wild imal" de fin ed in G.S.
113 331(10).
fb-)
—
For the purposes of this Subchapter, the following
procedures apply for the designation of critical habitat.
m- Th e Wildlife Resources Commission shal
unde rtak e designation of critical habitat with
the ads -(
(3)
Jvice and upon the recommendation o
the Nongamo Wildlife Advisory Committee
and—
s
hall—
b
ase any—d ecision—to de signate
critical habitat upon th e best availabl e sci en
t i fic evidence.
Lpon receiving the recommendation from the
Nongame Wildlife Advi sory Committee that
d e signation of critical habitat is essential to
the conservation of a protected animal species
li sted as endangered or threatened pursuant to
Rul e .0003 or .0001 of this Subchapter, and
upon finding suffici e nt ev i dence in th e recom
mendation to warrant further consideration of
designation, the Wildlife Resources Commis
s ion s hall—publish in th e North Carolina
Registe r notice of public hearing and intent to
designate the area as critical habitat.
&- #+he
m-
At the time of publ i cation of the notice ot
public—hearing—en
—
designation—of critical
habitat, th e be st availabl e sci entific evidence
upon which the proposed designation i s based
shall be available for public review and shall
be provid ed to oth e r agenci es.
The Wildlife Resourc e s Commission shall
base its decision to designate or not des ignate
a critical habitat solely upon the best availab l e
192 NORTH CAROLINA REGISTER May IS, 1996 11:4
PROPOSED RULES
m-
&-
scientific ovidonco and information in tho
record of tho publio hearing proceedings
pertinent to tho determination of whether
or not tho critical habitat is essential for
tho conservation of a protected animal
spooioo.—Considerations related to the
appropriateness—or implementation—el
special—conservation,—protection,—and
management actions which may bo roc
ommendod in any subsequently devel
opod conservation plan shall not bear
upon tho decision to designate or not
designate a critical habitat-
Following the designation of a oritioal
habitat, tho Wildlife Resources Commis
sion shall invito representatives of intor
ostod governmental agencies with juris
diotion over measures and restrictions
that oould e ffeot special conservation,
protection, and management of tho criti
cal habitat to participate in development
of a draft conservation plan for the listed
oritioal—habitat. Eaoh—governmental
agency involved in development tho draft
conservation—plan
—
shall—consider—the
range of impaots of proposed speoial
conservation,—protection, and manage
mont measures in tho plan that come
under its jurisdiction and that affect tho
publio interest and shall address these
impaots in th e plan.
Upon completion of tho draft consorva
tion plan, tho Wildlife Resources Com
mission shall publish in the North Caro
Una Register notioe of the availability of
tho draft conservation plan for public
review and notice of public hearing to
reoeive publio oomment on the appropri
at eness and various impaots of the oon
servation, protection, and management
provisions of tho draft conservation plan.
f?) The Wildlife Resources Commission and
other governmental agenoies contributing
te—the
—
management—and
—
conservation
strategy proposed for any designated
oritioal habitat shall provide at the time
of presentation of tho conservation plan
an opportunity for tho public and any
interested party to present pertinent infor
mation and oomments about eoonomio,
sooial, eoologioal or other impaots that
may result from implementation of spo
cial conservation, protection, and man
agomont measures rooommended in the
conservation plan.
(&) Each governmental agoncy affected by
special—conservation,—protection,—and
management measures contained in tho con
se rvation plan for a oritioal habitat shall bo
invited to participate in the publio hearing
process, to considor tho bost available scion
tifio ovidonco and tho record of tho public
hearing proceedings, and to take appropriate
aotiono under the agenoy's jurisdictional and
procedural authorities.
Authority G.S. 113-132; 113-134; 113-331; 113-333;
113-334; 113-336; 143-239.
NORTH CAROLINA REGISTER May 15, 1996 193
TEMPORARY RULES
The Codifier of Rules has entered the following temporary rule(s) Ln the North Carolina Administrative Code.
Pursuant to G.S. 150B-21. 1(e), publication of a temporary rule in the North Carolina Register serves as a notice of
rule-making proceedings unless this notice has been previously published by the agency.
TITLE 1 - DEPARTMENT OF
ADMINISTRATION
Rule-making Agency: State Building Commission
Rule Citation: 1 NCAC 30G .0101 - .0705
Effective Date: July 1, 1996
Findings Reviewed by the Codifier of Rules: Approved
Authority for the rule-making: G.S. 143-135.26(9)
Reason for Proposed Action: These Rules are proposed
to establish procedures and criteria by which the State
Building Commission cart evaluate requests to use alterna-tive
contracting methods in public construction, as autho-rized
by the 1995 General Assembly.
Comment Procedures: All persons interested in this
matter are encouraged to submit written comments to: R.
Glen Peterson, Department of Administration, 116 West
Jones Street, Raleigh, NC 27603-8003. Comments will be
accepted through July 15, 1996.
CHAPTER 30 - STATE CONSTRUCTION OFFICE
SUBCHAPTER 30G - STATE BUILDING
COMMISSION PROCEDURES AND CRITERIA
FOR AUTHORIZATION TO USE AN ALTERNATIVE
CONTRACTING METHOD
SECTION .0100 - GENERAL PROVISIONS
.0101 AUTHORITY
The State Building Commission, hereinafter referred to
as SBC, is a statutory body, empowered by law to perform
a multiplicity of duties with regard to the State's capital
facilities development and management program. In the
specific area of State capital improvement project require-ments
for building contracts, the SBC is empowered by
G.S. 143-135.26 to adopt procedures which allows a State
agency or institution, a local governmental unit, or any
other entity subject to the provisions of G.S. 143-129 to
use a method of contracting not authorized under G.S. 143-
128. The use of any other alternative method shall be
approved in advance by the SBC for any single project.
History Note: Authority G.S. 143-135.26;
Temporary Adoption Eff. July 1 , 1996.
.0102 POLICY
To assure that the public trust is carefully exercised, the
North Carolina General Assembly has enacted a number of
special procedures for the letting and administration of
public construction contracts. They also help to assure that
public owners receive good value in their expenditure of
the public funds and that they do not pay excessive prices
for construction. Therefore, it is the policy of the SBC
that the public's interest is typically best served by the
letting of public construction contracts pursuant to these
special statutory procedures, particularly the provisions of
G.S. 143-128. Nevertheless, the SBC recognizes that
extraordinary circumstances do arise which justify an
exemption from the methods of contracting authorized
under G.S. 143-128. The categories of exemptions and
other criteria set forth herein are designed to provide a fair
and uniform means by which the SBC can determine that
the requisite justifications to obtain an exemption have been
adequately demonstrated.
History Note: Authority G.S. 143-135.26;
Temporary Adoption Eff. July 1 , 1996.
.0103 DEFINITIONS
For the purposes of these Procedures and Criteria, the
following definitions shall apply:
( 1) "Alternative contracting method" includes by
way of example, but not limited to:
(a) the single-prime contracting system, not
otherwise authorized under G.S. 143-128,
(b) the design-build delivery system, or
(c) the construction management delivery
system.
"Chairman" means the Chairman of the State
Building Commission.
"Construction management delivery system"
means the alternative contracting method where
the public owner contracts for a fee with a single
person, but not the project general contractor,
who administers contracts with separate contrac-tors
for the construction of the project and who
is responsible as agent to the public owner for
the coordination and management of the project,
but where the public owner remains liable to the
separate contractors.
"Design-build delivery system" means that the
public owner contracts for a fee with a single
person for the design, management and construc-tion
of a project.
"Director" means the Director of the State
Construction Office.
(3}
(4)
161 'Exemption" means the grant of authorization by
the SBC for the use of a method of contracting
not otherwise authorized under G.S. 143-128.
(7) "Person" means a person, firm or corporation.
194 NORTH CAROLINA REGISTER May 15, 1996 11:4
TEMPORARY RULES
(8) "Project" means the building or facility for
which an exemption is requested by the public
owner, and upon which the work will be per-formed.
(9) "Public owner" means a state agency or institu-tion
,
a local government unit, or any other entity
subject to the provisions of G.S. 143-129.
(10) "SBC" means the State Building Commission.
(11) "Work" means the erection, repair, construction,
renovation or alteration to be performed upon a
building or facility.
History Note: Authority G.S. 143-135.26;
Temporary Adoption Eff. July 1 , 1996.
.0104 GENERAL PROCEDURES
(a) Application Form z The SBC shall establish a form
of application, along with a copy of the rules for applica-tion
approved by the SBC, to be used by public owners
requesting an exemption, which shall upon request be
provided to public owners. A completed application shall
contain all of the information necessary to enable the SBC
to determine the appropriateness and merits of approving
an exemption.
(b) Rules for Application : The SBC shall establish rules
for application to be used by public owners requesting an
exemption, which shall upon request be provided to public
owners.
(c) Review of Application:
(1) The public owner shall submit the application to
the State Construction Office, Attention: Direc-tor,
Department of Administration, New Educa-tion
Building, Suite 450, 301 North Wilmington
Street, Raleigh, North Carolina 27601-2827.
The Director shall review the application upon
its receipt. If the Director determines that the
application is not complete, he shall return the
application to the public owner along with a
written notice of the reasons for the return.
Despite the return of an application, a public
owner may request in writing to the Director that
the SBC consider the application as originally
submitted, and the notice of return to the public
owner shall so state this option. An application
shall be considered abandoned if it is returned
pursuant to this Section, and no further action is
taken by the public owner to satisfy the reasons
for its return.
(2) The SBC shall generally meet once per month to
review applications and to conduct its other
business. Completed applications shall be con-sidered
within 60 days of receipt by the Director
of the completed application. Once scheduled
for consideration by the SBC, the public owner
shall be given notice of the date, time and loca-tion
of the SBC meeting at which the application
shall be considered.
(3) The SBC shall only accept written applications.
After due consideration of these applications, the
SBC shall take one of the following actions:
(A) Delay consideration of the application:
(B) Deny the application: or
(C) Approve the application.
Within five days of the SBC's action upon the
application, notice of the same shall be sent to
the public owner, and to the Director. Upon a
delay of consideration pursuant to Paragraph (a)
of this Rule, the SBC shall immediately request
from the public owner or other person further
information required in order to make a determi-nation,
or provide the public owner with notice
of other good cause existing for the delay.
(d) Approval of an Application - Approval of an applica-tion
authorizes the public owner to utilize only the alterna-tive
contracting method as proposed by the public owner
and no other method of contracting. Approval of an
application shall be effective for a period to be determined
by the SBC but not exceeding J2 months, unless that
effective time period is extended by the SBC upon good
cause shown by the public owner. The extension of an
effective time period shall be for no more than 12 months
and shall run from the last day of the prior effective time
period. The effective time period shall run from the date
the SBC approves the application.
(e) Voting ; The authorization for an alternative con-tracting
method shall be approved by two-thirds of the
members of the SBC present and voting. A member of the
SBC is not qualified to vote upon any matter or influence
any other member's vote upon any matter in which he has
a conflict of interest. A conflict of interest, as related to
members of the SBC, is defined in G.S. 143-135.28.
(fj Public Records - The Director shall maintain a list of
applications which states the name of the public owner, the
name of the project, the project amount, a brief description
of the category for which the exemption is sought, and a
record of the SBC's action. Applications, and a record of
the SBC's action upon those applications, shall be available
for public inspection.
History Note: Authority G.S. 143-135.26;
Temporary Adoption Eff. July 1 , 1996.
.0105 CRITERIA FOR CONSIDERATION
(a) General Considerations ; Applications shall be
subject to the following general considerations which the
SBC shall utilize in reviewing all applications:
(1) Whether the public owner has adequately justi-fied
that the requested exemption is applicable to
the project.
(2) Whether under the circumstances presented the
project can be reasonably completed under the
methods authorized under G.S. 143-128, and if
not, whether the public owner has adequately
demonstrated that the proposed alternative con-
11:4 NORTH CAROLINA REGISTER May 15, 1996 195
TEMPORARY RULES
trading method |s necessary.
(3) Whether the exemption sought is appropriate and
in the public's interest.
(4) Whether the public owner has been responsible
in the pre-planning stages of the project.
(b) Criteria for Exemptions ; The following criteria
describe circumstances where the SBC recognizes that a
project may not be able to be reasonably completed under
the methods authorized by G.S. 143-128, and where the
use of an alternative contracting system, not otherwise
authorized by G.S. 143-128, may be appropriate and in the
public's interest:
(1
)
Special Technology or Equipment - The project
involves the erection or construction of special or
unique technology or equipment whose vendor
requires that its services be purchased in con-junction
with the technology or equipment; or
the vendor guarantees the technology or equip-ment
only if its services are purchased in con-junction
with the technology or equipment.
(2) Unusual Complexity : The project involves one
or more of the following conditions:
(A) very specialized or complex type of con-struction
involving unconventional con-struction
techniques or materials, or un-usual
working conditions;
(B) major renovations or an addition to an
existing facility requiring continuous
coordination of occupied programs or
operations necessary for the protection of
public health or safety; or
(C) extensive repairs, renovations or an addi-tion
to a major building or facility listed
either in the North Carolina or Federal
Register of Historic Properties.
(3) Accelerated Schedule ; A fast track schedule is
required due to actual or impending judiciai
intervention by means of a State or Federal court
order, or to address actual or impending regula-tory
mandates or citation for noncompliance.
History Note: Authority G.S. 143-135.26;
Temporary Adoption Eff. July 1 , 1996.
TITLE 10 - DEPARTMENT OF HUMAN
RESOURCES
Rule-making Agency: DHR-Division of Medical Assis-tance
Rule Citation: 10 NCAC 50D .0101 - .0103. .0201,
.0301 - .0302. .0401 - .0402. .0501 - .0503
Effective Date: Temporary Adoption Eff. May 6, 1996 to
expire on July 1, 1996, or the last day of the 1996 session
of the General Assembly, whichever is later.
Findings Reviewed by the Codifier of Rules: Approved
Authority for the rule-making:
U.S.C. 1396p.
G.S. 108A-70.5; 42
Reason for Proposed Action: These rules are necessary
to implement Medicaid estate recovery. OBRA 1993
mandated estate recovery and enabling state legislation to
effect this mandate was needed. G.S. 108A-70.5 was
passed in July 1994 and authorizes estate recovery. These
rules were published in NC Register 10:15. These rules
have already undergone public comment and revision. At
the February 15, 1996 Rules Review Commission meeting,
the Commission voted to return these rules for failure to
prepare a fiscal note in compliance with G.S. 150B-
21.4(b). These rules have been revised as a result of the
public hearing process. Revisions are shown with strike
through and underline.
Comment Procedures: Written comments concerning
these rule-making actions must be submitted by July 15,
1996 to Portia Rochelle, APA Coordinator, Division of
Medical Assistance, 1985 Umstead Drive, Raleigh, NC
27603.
CHAPTER 50 - MEDICAL ASSISTANCE
SUBCHAPTER 50D - ESTATE RECOVERY
SECTION .0100 - RECIPIENTS
SUBJECT TO ESTATE RECOVERY
.0101 NOTICE OF ESTATE RECOVERY
(a) An individual who applies or reapplies) on or after
October 1.—1991 under for Medicaid disabled or aged
categories coverage for cost of care shall be given a
written notice at the time of application that a claim may
be filed against their estate, if one exists, to recover
Medicaid payments made on his behalf.
fb) Notice shall be on a form prescribed by the Division
of Medical Assistance and shall explain:
The types of Medicaid payments subject to estate
recovery; and
That recovery will not be claimed if the individ-ual
is survived by a legal spouse, child(ren)
under age 21 or blind or disabled child(ren) of
any age who became blind or disabled before age
21 and still live on the property of the individ
ua+r individual;
(3) That estate recovery is limited to recipients age
55 and over who receive certain Medicaid ser-vices
or to recipients who are permanently
institutionalized; and
(4) That recovery may be waived in the case of
undue hardship.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
(1)
(2)
196 NORTH CAROLINA REGISTER May 15, 1996 11:4
TEMPORARY RULES
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1
,
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
.0102 PERMANENTLY INSTITUTIONALIZED
Recovery shall apply to the estates of individuals under
age 55 who seek Medicaid coverage for costs of care in a
medical institution and who cannot reasonably be expected
to be discharged to return home.
(1) For purposes of estate recovery, medical institu-tion
means licensed nursing facilities, intermedi-ate
care for the mentally retarded facilities,
nursing facility level of care in hospitals, or
psychiatric inpatient care in a general hospital, ef
psychiatric hospital hospital, or mental institu-tion.
(2) A determination that an individual cannot reason-ably
be expected to be discharged to return home
is made when the individual seeks placement in
or has been admitted to a medical institution
using the following evidence:
(a) Admission forms for level of care, physi-cian
written statement of discharge plans,
or plans of care which indicate care needs
are not of temporary permanent or of
indefinite duration, or
(b) Individual continues to be a resident of a
medical institution at the end of a tempo-rary
stay predicted by his physician at the
time of admission to be no longer than six
months in duration.
(3) Notice of the determination that the individual is
residing in a medical institution on a permanent
or indefinite basis shall be given to the individ-ual,
or to his parent/guardian/responsible person
if the individual is incompetent, within three
work days after the determination. The notice
shall explain the right to request a reconsidera-tion
review, and the time limits and procedures
for doing so.
(4) The individual or his parent/guardian/responsible
person may request a reconsideration review of
the determination under Section .0200 of this
Subchapter.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1
,
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
.0103 AGE 55 AND OVER
(a) Recovery shall apply to the estates of individuals
who on or after reaching age 55 seek receive Medicaid
coverage for nursing facility level of care in a medical
inatitution or under a home and community based alterna-tive
program for individuals who would otherwise qualify
for ea to expire on July 1, 1996, or the last day of the
1996 session of the General Assembly, whichever is later.
to in a medioal inotitution. nursing facility level of care.
(b) Written notice that the state may file a claim against
their estate to recover the payments made by the Medicaid
Program on their behalf shall be given to individuals at the
time of approval of eligibility for nursing facility level of
care in a medioal inotitution or approval for home and
community based alternatives services.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1
,
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
SECTION .0200 - RECONSIDERATION REVDZW
.0201 RECONSIDERATION REVD2W
(a) The recipient or his parent/guardian/responsible
person acting on behalf of the recipient may request
reconsideration of the determination that the individual
cannot reasonably be expected to be discharged to return
home based on relevant evidence stated in Rule .0101 of
this Subchapter.
(b) A reconsideration review shall be requested in
writing to the Division of Medical Assistance estate
recovery administrator within 30 calendar days of the
determination and written notice provided by the county
department of social services.
(c) Within 30 calendar days of a written request for
reconsideration of the determination of permanent institu-tionalization,
the estate recovery administrator shall
establish a reconsideration date and conduct a review of:
(1) All evidence considered by the county depart-ment
of social services in making a determina-tion
of permanent institutionalization, and
(2) Information provided in writing or by telephone
conference with the recipient or an individual
acting on behalf of the recipient.
(d) The review shall be conducted in the Division of
Medical Assistance offices and may include a telephone
conference with the recipient or an individual acting on
behalf of the recipient if oral testimony is requested.
(e) A decision shall be made and provided in writing to
the recipient or an individual acting on behalf of the
recipient within 15 calendar days of the date of the recon-sideration
review.
(f) If the recipient disagrees with the decision of the
reconsideration review, he may appeal to the Office of
Administrative Hearings (OAH) within 30 60 calendar days
of receipt of the reconsideration review decision. If no
appeal to OAH is filed, the reconsideration review decision
is final.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
11:4 NORTH CAROLINA REGISTER May 15, 1996 197
TEMPORARY RULES
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1
,
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
SECTION .0300 - MEDICAID PAYMENTS
SUBJECT TO RECOVERY
.0301 PERMANENTLY rNSTITUTIONALIZED
(a) Recovery shall be claimed for all Medicaid pay-ments,
including cost sharing charges for Medicare
services and Medicare premiums, made on behalf of
individuals for the period of time the individual received
care in a medical institution, including the period of time
prior to the date the recipient is determined permanently
institutionalized whether or not such periods were consecu-tive.
The amount of recovery « shall be limited to the
amount of Medicaid payments for services and benefits
described herein.
(b) No recovery wiH shall be claimed for any period of
time the recipient was discharged from a medical institution
and lived in the community for a period of 30 or more
consecutive days.
(c) No recovery wiH shall be claimed if the recipient is
survived by one or more of the relatives listed in Section
.0100 of this Subchapter.
(d) No recovery wiH shall be claimed if the Division of
Medical Assistance determines under provisions of Section
.0500 of this Subchapter that it is not cost effective or if
recovery would create undue hardship to a survivor.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
I396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1
,
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
.0302 AGE 55 and OVER
(a) Recovery shall be claimed for Medicaid payments
for the following services and benefits:
(1) Nursing facility level of care;
(2) Home and community based alternatives ser-vices;
(3) Hospital inpatient and outpatient Related hospital
care received during approved care under either
Subparagraph (1) or (2) of this Paragraph.
(4) Prescription drugs received during approved care
under either Subparagraph (1) or (2) of this
Paragraph; and
(5) Medicare premiums paid during the time of
approved care under either Subparagraph (1) or
(2) of this Paragraph.
(b) The amount of recovery » shall be limited to the
amount of Medicaid payments and benefits described in
Paragraph (a)(l)-(5) of this Rule.
(c) No recovery wiH shall be claimed if the recipient is
survived by one or more relatives listed in Section .0100
of this Subchapter.
(d) No recovery will shall be claimed if the Division of
Medical Assistance determines under provisions of Section
.0500 of this Subchapter that it is not cost effective or if
recovery would create undue hardship to a survivor.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1
,
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
SECTION .0400 - FILING AND COLLECTION OF
CLAIMS AGAINST ESTATE
.0401 FILING CLAIM AGAINST ESTATE
(a) Within 60 days after the date of a recipient's death,
the Division of Medical Assistance or its fiscal agent shall
produce a claim document summarizing all Medicaid
payments subject to recovery as stated in Rules .0301 and
.0302 of this Subchapter.
(b) The claim shall be mailed to the county department
of social services from which the individual received
Medicaid.
(c) Following a determination that the recipient is not
survived by any of the relatives listed in Section .0100 of
this Subchapter, the county department of social services
shall file the claim by certified mail with the individual
who has been named to administer the estate and shall send
a copy to the clerk of court for his records. At the time
the claim is filed the administrator shall be notified that
recovery will be waived if the assets in the estate are below
five thousand dollars ($5,000), and of the procedures for
requesting a determination of undue hardship.
(d) The claim shall be filed regardless of whether an
appeal or determination of permanent institutionalization
status has been decided.
(e) (d) If an administrator of the decedent's estate has
not been appointed at the time the claim is received in the
county, within 30 calendar days the county shall request
the name of the administrator from the clerk of court and
shall file the claim directly with the clerk of court if no
appointment has been made.
(fj fe) At any time that the county department of social
services determines that the decedent is survived by any of
the relatives listed in Section .0100 of this Chapter or that
the decedent does not have an estate, it shall notify the
Division of Medical Assistance to cease recovery efforts.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1,
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
.0402 COLLECTION OF CLAIMS
(a) Estate for purposes of recovery of Medicaid pay-
198 NORTH CAROLINA REGISTER May 15, 1996 11:4
TEMPORARY RULES
merits is defined under G.S. 28A-15-1.
(p) Unless the Division of Medical Assistance waives or
reduces its claim, recovery under rules in Section .0500 of
this Subchapter, recovery shall be claimed in fuU for the
amount of the Medicaid claim to the extent that assets in
the estate are sufficient to meet the state's claim as a fifth
class creditor.
(c) All recoveries for Medicaid claims shall be remitted
to the Division of Medical Assistance by the administrator
of the decedent's estate, any individual or entity designated
by the clerk of court or by the clerk of court.
(d) Amounts recovered shall be shared by the federal
,
state and county governments in proportion to the financial
share of program costs borne by each at the time recovery
is received.
poverty level and assets in which the survivor or
his spouse have an interest are valued below
twelve thousand dollars ($12,000).
(c) Undue hardship dees shall not include loss of a pre-existing
standard of living nor the establishment of a source
of maintenance that did not exist prior to the decedent's
death.
(d) A claim of undue hardship to a survivor shall be
made in writing to the Division of Medical Assistance
estate recovery administrator within 90 30 days after the
surviving heir claiming undue hardship has been notified of
the Medicaid claim, claim has been filed with the admini s
trotor or clerk of court. The claim of hardship must shall
describe the financial circumstances of the heir and the
basis for his dependence on assets in the decedent's estate.
History Note: Authority- G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1
.
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396P. ;
Temporary Adoption Eff. May 6, 1996 to expire on July I
,
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
SECTION .0500 - WAIVER OF RECOVERY
.0501 RECOVERY NOT COST EFFECTIVE
Recovery shall be deemed to not be cost effective and
shall be waived when:
(1) The amount of Medicaid payments for services
and benefits subject to recovery is less than three
thousand dollars ($3,000). or
(2) The assets in the estate are below five thousand
dollars ($5,000).
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p. :
Temporary Adoption Eff. May 6, 1996 to expire on July 1
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
.0502 UNDUE HARDSHIP
(a) Recovery w shall be waived if enforcement of the
claim will cause undue or substantial hardship to the
surviving heirs of the decedent.
(b) Undue or substantial hardship is shall be deemed to
exist when:
(1) Real or personal property included in the estate
is the sole source of income for a survivor and
the net income derived is below 75 percent of
the federal poverty level for the dependents of
the survivor(s) claiming hardship, or
(2) Recovery would result in forced sale of the
residence of a survivor who lived in the resi-dence
for at least 12 months immediately prior to
and on the date of the decedent's death and who
would be unable to obtain an alternate residence
because the net income available to the survivor
and his spouse is below 75 percent of the federal
.0503 DETERMINATION OF UNDUE HARDSHIP
(a) The estate recover)' administrator shall evaluate each
claim of hardship within 60 calendar days of the request to
make a determination to waive recovery of the claim in
part or in full. In making this determination, the adminis-trator
may request documentation to support the survivor's
claim of hardship including prior year's income tax
returns, bank statements, wage and earnings files, real and
personal property records, utility records, tax records,
medical bills, or other documents offered by the survivor
to support his claim.
(b) If documentation necessary to evaluate the claim of
hardship is not provided or the survivor requests additional
time to obtain the documentation, the administrator may
extend the review for an additional 30 days.
(c) The claim of hardship shall be denied if the neces-sary
documentation is not provided within the time frames
stated in Paragraphs (a) and (b) of this Rule.
(d) The administrator shall notify in writing the survivor
claiming hardship, the administrator and the clerk of court
of his decision within 10 calendar days after completing the
review of the request and documentation supporting the
claim of hardship. The notice shall explain the right to
appeal to the Office of Administrative Hearings (OAH) and
the time limit and procedure for doing so.
(e) If the survivor disagrees with the decision, he may
appeal to the Office of Administrative Hearings (OAH)
within 30 60 calendar days of receipt of the decision. If
no appeal to OAH is filed, the decision is shall be final.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
I396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1
.
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
11:4 NORTH CAROLINA REGISTER May 15, 1996 199
TEMPORARY RULES
TITLE 21 - OCCUPATIONAL LICENSING
BOARDS
CHAPTER 69 - BOARD FOR LICENSING
OF SOIL SCIENTISTS
Rule-making Agency: North Carolina Board for Licens-ing
of Soil Scientists
Rule Citation: 21 NCAC 69 .0101 - .0104, .0201 - .0202,
.0301 - .0308, .0401 - .0402, .0501
Effective Date: May 15, 1996
Findings Reviewed by the Codifier of Rules: Approved
Authority for the rule-making: G.S. 89F
Reason for Proposed Action: Passage of G.S. 89F in
Julx. 1995 established licensing of soil scientists. The
licensing board created by this statute requires rules for its
function especially with respect to allowing licensing
without examination prior to November, 1996. Notice of
rule-making proceedings was published in the Register on
January 2, 1996.
Comment Procedures: All persons interested in this
matter are encouraged to submit written comments or
questions to H.J. Kleiss, NC Board for Licensing of Soil
Scientists, PO Box 5316, Raleigh, NC 27650-5316.
Comments will be accepted through June 14, 1996.
Instructions on How to Demand a Public Hearing:
Contact the NC Board for Licensing of Soil Scientists, PO
Box 5316, Raleigh, NC 27650-5316. A request for a
hearing must be received by the Board within 15 days from
the publication of this notice.
SECTION .0100 - STATUTORY AND
ADMINISTRATIVE PROVISIONS
.0101 AUTHORrrY: NAME AND LOCATION OF
BOARD
The "North Carolina Soil Scientist Licensing Act". G.S.
89F. establishes and authorizes the "North Carolina Board
for Licensing of Soi Scientists"
"Board". Unless otherwise directed a
hereafter called the
communications
preside at all meetings, appoint committees, sign all
certificates issued and perform all duties pertaining to his
office.
(b) Vice-Chairmaji. The Vice-Chairman. in the absence
of the Chairman, shall perform all of the duties of the
Chairman.
(c) Secretary-Treasurer:
(1) The Secretary-Treasurer, with the assistance of
other officers or employees that may be ap-proved
by the Board, shall conduct and care for
all correspondence of the Board, keep minutes of
all meetings, and keep all books and records.
He shall have charge, care and custody of the
official documents by order of the Board. He
shall proyide notice to each member of the Board
of the time and place of all meetings of the
Board.
(2) The Secretary-Treasurer, with the assistance of
other officers or employees that may be ap-proy&
d by the Board, shall receive all monies
from applicants for annual renewal or other fees
and deposit them in an authorized depositors' of
the Board.
(3) The Secretary-Treasurer shall mail a copy of
G.S. 89F and the rules of this Chapter to each
applicant for a license.
History Note: Authority G.S. 89F-5:
Temporary Adoption Eff. May 15, 1996.
.0103 SEAL OF THE BOARD
The official seal of the Board is the Seal of the State of
North Carolina.
History Note: Authority G.S. 89F-5;
Temporary Adoption Eff. May 15, 1996.
.0104 FEES
Each completed application form shall be accompanied
by the prescribed fee. Application fees shall not be
refunded regardless of Board approval or disapproval of
the application.
( 1 ) application forms for licensing as a Soil Scien-tist,
including a copy of the Licensing Act and
rules J 5.00
application for license 50.00
examination 125.00
license 85.00
shall be addressed to the North Carolina Board for Licens-
£2)
[3]
renewal of license 50.00
ing of Soil Scientists at PO Box 5316, Raleigh. North
Carolina 27650-5316.
(6) restoration of license 1 10.00
(7) replacement of license 50.00
(8) licensed soil scientist seal 30.00
History Note: Authority G.S. 89F-4; 89F-5;
Temporary Adoption Eff. May 15, 1996.
.0102 DUTDZS OF OFFICERS
(a) Chairman. The Chairman shall, when present.
History Note: Authority G.S. 55B-10: 55B-11: S9F-25;
150B-19:
Temporary Adoption Eff. May 15, 1996.
200 NORTH CAROLINA REGISTER May 15, 1996 11:4
TEMPORARY RULES
SECTION .0200 - LICENSING OF SOIL
SCIENTISTS
.0201 APPLICATION PROCEDURE
(a) All applicants for licensing shall furnish the follow-ing:
(1) A legible official copy of their college tran-script(
s). and verification of graduation sent
directly from the institution to the Board;
(2) A record of experience in the practice of soil
science including any of the applicant's written
reports, maps, published articles or other materi-als
the Board determines are appropriate to
document the applicant's experience as a soil
scientist;
(3) Four references as defined in G.S. 89F-10(a)( 1 );
(4) Signed copy of Code of Professional Conduct;
(5) A notarized copy of a completed application
form; and
(6) The application fee as prescribed in Rule .0104
of this Chapter.
(b) Applicants for licensing under comity shall submit
an application form along with the prescribed fee. The
Board may require the submittal of additional information
if necessary to determine if the applicant meets the require-ments
of G.S. 89F.
(c) Applicants for reinstatement of an expired license
shall submit a reinstatement application and the prescribed
fee.
(d) Applicants for reinstatement of a revoked or sus-pended
license shall submit such information as js required
by the Board, on a case-by-case basis, to determine their
eligibility for reinstatement, and shall submit the prescribed
fee.
(e) Applicants who do not meet the minimum qualifica-tion
for education as defined in G.S. 89F-10 but have a
specific record of J_5 years or more experience jn the
practice of soil science of a grade and character that
indicates to the Board that the applicant is competent to
practice soil science shall be admitted to the written
examination. The applicant shall show evidence of the
practicing experience. Upon passing such examination, the
applicant shall be granted a license to practice soil science
in this State, provided other requirements of G.S. 89F and
the rules in this Chapter are met.
History Note: Authority G.S. 89F-5; 89F-9; 89F-10;
89F-12;
Temporary Adoption Eff. May 15, 1996.
.0202 EXPIRATIONS AND RENEWALS OF
CERTIFICATES
(a) The annual renewal fee of fifty dollars ($50.00) shall
be payable to the Board. The Board shall send to each
licensed soil scientist a form that requires the registrant to
provide the Board with his business and residential address
and to affix the registrant's North Carolina Licensed Soil
Scientist seal thereupon. An applicant for renewal shall
document continuing education as provided in Section
.0300 of this Chapter. The completed forms along with
the required fee shall be forwarded to the Board.
(b) All licenses will expire on July _L Licenses that
have not been renewed by September 1st may only be
renewed by filing a restoration applicat i on and submitting
a restoration fee.
(c) The Soil Scientist-in-Training certificate shall not
expire and therefore does not have to be renewed.
History Note: Authority G. S. 89F-5;
Temporary Adoption Eff. May 15, 1996.
SECTION .0300 - CONTFNUEVG PROFESSIONAL
COMPETENCY
.0301 INTRODUCTION
Every licensee shall meet the continuing professional
education requirements of this Section as a condition for
license renewal.
History Note: Authority G.S. 89F-5;
Temporary Adoption Eff. May 15, 1996.
.0302 DEFINrriONS
Terms used in this Section are defined as follows:
lU
m
Oj
(4}
<?J
Professional Development Hour (PDH) - One
contact hour (nominal) of instruction or presenta-tion.
College/Unit Semester/Quarter Hour - Credit
assigned by a college or university for a com-pleted
course.
Course/ Activity - Any course or activity with a
clear purpose and objective that maintains,
improves, or expands the skills and knowledge
of the licensee.
Sponsor ; Organization or individual that has
supplied information on a form furnished by the
Board with respect to the organization or individ-ual's
ability to provide instruction m "for credit"
courses. Courses offered by those designated as
"Sponsor" shall contain a clear purpose and
objective, and result in the maintenance, im-provement,
or expansion of skills and knowledge
relevant to a licensee's field of practice.
Courses offered by "Sponsors" are acceptable for
PDH credit without scrutiny of individual course
content.
Renewal Period for Continuing Professional
Education : The period for accumulating the
required PDH units shall be three years.
History Note: Authority G. S. 89F-5;
Temporary Adoption Eff. May 15 , 1996.
.0303 REQUIREMENTS
11:4 NORTH CAROLINA REGISTER May 15, 1996 201
TEMPORARY RITES
Even licensee shall obtain 45 PDH units during each
three sear period of licensing. If a licensee exceeds the
required number of units in any triennial period, a maxi-mum
of j_5 PDH units may be carried forward into the
subsequent period. Selection of courses and activities
which meet the requirements of Rule .0302(3) of this
Section shall be the responsibility of the licensee. Licens-ees
have the option of selecting courses other than those
offered by sponsors. Post evaluation of courses offered by
other than sponsors as defined in Rule .0302(4) of this
Section mav result in non-acceptance. PDH units may be
earned as follows:
(1
)
Completion of college courses.
(2) Completion of continuing education courses.
(3) Completion of correspondence, televised, video-taped
, audio taped. and other short
courses tutorials.
(4) Presenting or attending seminars, in-house
courses, workshops, or professional or technical
presentations made at meetings, conventions or
conferences.
(5) Teaching or instructing in Items (1 ) through (4)
of this Rule.
(6) Authoring published papers, articles, or books.
(7) Active participation in professional or technical
societies.
(8) Patents.
activity is completed or until the end of each year of
service is completed. The following criteria will be used
in determining PDH credits:
(1
)
Credit for college or community college courses
will be based upon course credit established by
the college.
(2) Credit for seminars and workshops, shall be
based on one PDH unit for each hour of atten-dance.
(3) Attendance at programs presented at professional
and technical society meetings shall earn PDH
units for the actual time of each program with a
maximum of J_5 for a given meeting.
(4) Credit determination for published papers,
articles and books and obtaining patents is the
responsibility of the licensee with final approval
by the Board.
(5) Credit for active participation in professional and
technical societies (limited to 2 PDH per organi-zation),
requires that a licensee serve as an
officer or actively participate in a committee of
the organization. PDH credits shall not be
earned until the end of each vear of service is
completed.
History Note: Authority G. S. S9F-5:
Temporary Adoption Eff. May 15, 1996.
History Note: Authority G.S. 89F-5;
Temporary Adoption Eff. May 15 . 1996.
.0304 UNITS
The conversion of other units of credit to PDH units is
as follows:
( 1
)
1 College or unit semester hour 15 PDH:
(2) I College or unit quarter hour 10 PDH:
(3) 1 Hour of professional development in course
work, seminars, or professional or technical
presentations made at meetings, conventions or
conference \ PDH:
For teaching in Items (jj : (4j of this Rule. PDH
credits are doubled *;
Each published paper, article or book 10 PDH:
Active participation in professional and technical
society . (Each organization.) 2 PDH:
Each patent 10 PDH.
^Teaching credit is valid for teaching a course or
seminar for the first time only.
History Note: Authority G. S. S9F-5:
Temporary Adoption Eff. May 15. 1996.
.0305 DETERMINATION OF CREDIT
The Beard for Licensing of Soil Scientists shall have
final authority with respect to approval of courses, spon-sors,
credit, PDH value for courses, and other methods of
earning credit. PDH credits are not earned until the
Li
L^
[6J
Li
.0306 RECORDKEEPING
(a) Each licensee shall maintain records to be used to
support credits claimed. Records required include, but are
not limited to:
( 1
)
a log showing the type of activity claimed,
sponsoring organization, location, duration,
instructor's or speaker's name, and PDH credits
earned:
(2) attendance verification records in the form of
completion certificates, or other documents
supporting evidence of attendance.
(b) These records shall be maintained for a period of
three years and copies may be requested by the board for
audit verification purposes.
History Note: Authority G.S. 89F-5;
Temporary Adoption Eff. May 15, 1996.
.0307 EXEMPTIONS
A licensee shall be exempt from the continuing profes-sional
development educational requirements for one of the
following reasons:
( 1
A licensee serving on temporary active dutv in
the armed forces of the United States for a
period of time exceeding 120 consecutive days in
a year shall be exempt from obtaining the contin-uing
professional education hours required
during that year.
(2) Licensees experiencing physical disability (as
202 NORTH CAROLINA REGISTER May 15, 1996 11:4
TEMPORARY RULES
defined in G.S. 168A), illness, or other circum-stances
beyond the control of the licensee as
reviewed and approved by the Board may be
exempt. Supporting documentation shall be
furnished to the Board.
(3) Licensees who list their occupation as "Inactive"
on the renewal form and who further certify that
they are no longer receiving any remuneration
from providing professional soil services shall be
exempt from the continuing professional educa-tion
hours required, In the event such a person
elects to return to active soil science practice,
professional development hours shall be earned
in accordance with the requirements of Rule
.0308 m this Section before returning to active
practice.
History Note: Authority G.S. 89F-5;
Temporary Adoption Ejf. May 15. 1996.
.0308 REINSTATEMENT
A licensee may bring an inactive license to active status
by obtaining all delinquent PDH units and paying the
restoration fee. However, if the total number required to
become current exceeds 30, then 30 shall be the maximum
number required.
History Note: Authority G.S. 89F-5:
Temporary Adoption Ejf. May 15, 1996.
SECTION .0400 - STANDARDS OF
PROFESSIONAL CONDUCT
.0401 CODE OF PROFESSIONAL CONDUCT
(a) A soj] scientist shall conduct his practice in order to
protect the public health, safety and welfare. The soil
scientist shall at all time recognize his primary obligation
to protect the safety, health, and welfare of the public in
the performance of his professional duties.
(b) A soil scientist shall perform his services only in
areas of fys competence and:
(1
)
shall undertake to perform assignments only
when qualified by education or experience in the
specific technical field of soil science involved.
(2) shall not affix his signature or seal to any docu-ment
dealing with subject matter to which he
lacks competence by virtue of education or
experience, nor to any such plan or document
not prepared under his direct supervisory control
except that the soil scientist may affix his seal
and signature to documents depicting the work of
two or more professionals provided he designates
by note under his seal the specific subject matter
for which he is responsible.
(c) A soil scientist shall issue public statements only in
an objective and truthful manner and:
(1) shall be completely objective and truthful in all
professional reports, statements or testimony.
He shall include relevant and pertinent informa-tion
in such reports, statements or testimony.
(2) when serving as an expert or technical witness
before any court, commission, or other tribunal,
shall express an opinion only when U is founded
upon knowledge of the facts in issue, upon a
background of technical competence in the
subject matter, and upon honest conviction of the
accuracy and propriety of hus testimony.
(3) shall issue no statements, criticisms, or argu-ments
on soil science matters connected with
public policy which are inspired or paid for by
an interested party, or parties unless he has
prefaced his comment by explicitly identifying
himself, by disclosing the identities of the parties
on whose behalf he is speaking, and by revealing
the existence of any pecuniary interest he may
have in the instant matters.
(4) shall not attempt to injure, maliciously or falsely,
directly or indirectly, the professional reputation,
prospects, practice or employment of another
soil scientist, nor shall he indiscriminately criti-cize
another soil scientist's work in public. If he
believes that another soil scientist is guilty of
misconduct or illegal practice, he shall present
such information to the proper authority for
action.
(d) A soU scientist shall avoid conflicts of interest and:
( 1) shall promptly inform his employer or client of
any business association , interest, or circum-stances,
which could influence his judgment or
the quality of his services.
(2) shall not solicit or accept financial or other
valuable considerations from material or equip-ment
suppliers for specifying their products
without full disclosure.
(3) shall not solicit or accept gratuities, directly or
indirectly, from contractors, their agents, or
other parties dealing with his client or employer
in connection with work for which he is respon-sible.
(4) when in public service as a member, advisor, or
employee of a governmental body or department,
the soil scientist shall abstain from voting on
matters involving services provided by him or
his organization in private soil science practices.
(5) shall not solicit or accept a contract from a
governmental body on which a principal or
officer of his organization serves as a member
without full disclosure to affected parties.
(6) shall not attempt to supplement another soil
scientist in a particular employment after becom-ing
aware that the other has been selected for the
employment.
(e) A soil scientist shall solicit or accept work only on
the basis of hjs qualifications and:
1:4 NORTH CAROLINA REGISTER May 15, 1996 203
TEMPORARY RULES
(1) shall disclose to affected parties any payment,
either directly or indirectly, any commission,
political contribution, or a gift, or other consid-eration
in order to secure work, exclusive of
securing salaried positions through employment
agencies,
(2) shall compete for professional employment on
the basis of qualification and competence for
proper accomplishment of the work. He shall
not solicit or submit proposals for professional
services containing a false, fraudulent, mislead-ing
deceptive or unfair statement or claim re-garding
the cost, quality or extent of services to
be rendered.
(3) shall not falsify or permit misrepresentation of
his, or his associates', academic professional
qualification. He shall not misrepresent or
exaggerate his degree of responsibility in or for
the subject matter of prior assignments. Bro-chures
or other presentations incident to the
solicitation of employment shall not misrepresent
pertinent facts concerning employers, employees,
joint ventures, or his or their past accomplish-ments
with the intent and purpose of enhancing
his qualifications and his work.
(4) shall not knowingly associate with or permit the
use of his name or firm name in a business
venture b-y_ any_ person or firm which he knows,
or has reasons to believe, is engaging in business
or professional practices of a fraudulent or
dishonest nature.
(5) if the soil scientist has knowledge or reason to
believe that another person or firm may be in
violation of any of these provisions or of the
North Carolina Soil Scientist Licensing Act, he
shall present such information to the Board and
shall cooperate with the Board in furnishing such
further information or assistance as may be
required by the Board.
(f) A soil scientist whose professional registration is
revoked or suspended by another jurisdiction, shall be
subject to disciplines by the Board if the registrant's actions
violate G.S. 89F or the rules in this Chapter. Conviction
of a felony without restoration of civil rights, or the
revocation or suspension of the license of a soil scientist by
another jurisdiction, if for a cause which in the State of
North Carolina would constitute a violation of G.S. 89F or
of these Rules, shall be grounds for a charge of violation
of the rules in this Chapter.
History Note: Authority G.S. 89F-17;
Temporary Adoption Eff. May 15, 1996.
.0402 RULES OF CONDUCT OF ADVERTISING
(a) A soil scientist shall not make exaggerated, mislead-ing,
deceptive or false statements or claims about his
professional qualifications, experience or performance in
his brochures, correspondence, listings or other public
communications.
(b) The prohibitions listed in Paragraph (a) of this Rule
include, but are not limited to. the use of statements
containing a material misrepresentation of fact or omitting
a material fact necessary to keep the statement from being
misleading; statements intended or likely to create an
unjustified expectation; statements containing prediction of
future success; or statements containing an opinion as to
the quality of services.
(c) Consistent with the foregoing, a soil scientist may
advertise for recruitment of personnel.
(d) Consistent with the foregoing, a soil scientist may
prepare articles for the lay or technical press. Such
articles shall not imply credit to the author for work
performed by others.
History Note: Authority G.S. 89F-17;
Temporary Adoption Eff. May 15, 1996.
SECTION .0500 - DISCIPLINARY ACTION AND
PROCEDURE
.0501 IMPROPER PRACTICE BY LICENSEE
(a) Duty of the Board. When the Board becomes aware
of an alleged violation, it shall send a "letter of inquiry" to
the soil scientist allegedly involved and to the complainant.
The soil scientist shall reply to this and any other inquiry
of the Board within 30 calendar days. Failure to respond
will constitute violation of the rules in this Chapter. After
receiving and considering the response from the soil
scientist, the Board may send additional letters of inquiry
to the soil scientist and other persons allegedly involved.
(b) Findings of the Board. Upon consideration of
responses to inquiries, the Board shall determine what
action shall be taken:
LU if the Board determines that no disciplinary
action is necessary, all parties previously con-tacted
shall be so informed;
(2) iff the Board determines that the infraction is
deemed minor, then the licensee may be offered
a "letter of warning". This "letter of warning"
shall note the licensee's acceptance of such
action by the Board and shall specify the Board's
cause for concern. Other persons previously
contacted shall be informed that the Board has
acted upon the matter;
(3) if the Board determines that a formal hearing
should be held, G.S. 150B is applicable;
(4) if the Board determines that another person
allegedly involved is licensed by the State,
relevant information shall be sent by letter to the
respective professional board.
History Note: Authority G.S. 89F-5; 89F-18; 89F-20;
89F-22;
Temporary Adoption Eff. May 15, 1996.
204 NORTH CAROLINA REGISTER May 15, 1996 11:4
APPROVED RULES
This Section includes the Register Notice citation to Rules approved by the Rules Review Commission (RRC) at its
meeting of April 18. 1996 pursuant to G.S. 150B-21. 17(a)(1) and reported to the Joint Legislative Administrative
Procedure Oversight Committee pursuant to G.S. 150B-21. 16. The full text of rules are published below when the
rules have been approved by RRC in a form different from that originally noticed in the Register or rules which notice
in the Register was not required. The rules published in full text are identified by an * in the listing of approved
rules.
APPROVED RULE CITATION REGISTER CITATION TO THE
NOTICE OF TEXT
10 NCAC 03C .6208 *
10 NCAC 26 B .0105 *
12 NCAC 021 .0101 *
12 NCAC 021 .0206 *
12 NCAC 021 .0210 *
15A NCAC 18A .1814 *
15A NCAC 20D .0243 *
17 NCAC 06 B .0612 *
17 NCAC 06 B .3716 *
17 NCAC 07 B .1101 *
17 NCAC 07B .1105
17 NCAC 07B .1108 - 1110
17 NCAC 07B .1112
17 NCAC 07B .1114
17 NCAC 07B .1123 *
17 NCAC 07B .1602 *
17 NCAC 07 B .1701 - 1702 *
17 NCAC 07 B .1802 *
17 NCAC 07 B .2401 *
17 NCAC 07 B .2601
17 NCAC 07 B .4002
17 NCAC 07 B .4004
17 NCAC 07 B .4008 *
17 NCAC 07B .4301 *
17 NCAC 07B .4408 *
17 NCAC 07B .4902 *
21 NCAC 01 .0705 *
21 NCAC 01 .0709
21 NCAC 32H .0101 *
21 NCAC 32H .0102 +
21 NCAC 32H .0201 *
21 NCAC 32H .0301 - 0303 *
21 NCAC 32H .0401 - 0404 *
21 NCAC 32H .0406 *
21 NCAC 32H .0407 - 0408
21 NCAC 32H .0409 *
21 NCAC 32H .0501 - 0502 *
21 NCAC 32H .0504 - 0506 *
21 NCAC 32H .0507 *
21 NCAC 32H .0601 *
21 NCAC 32H .0602
21 NCAC 32H .0701 +
21 NCAC 32H .0801 *
21 NCAC 32H .0901 *
Not Required, G.S
10:22 NCR 2831
. 150B-21.5
Not Required, G.S
Not Required, G.S
Not Required, G.S
Not Required, G.S
Not Required, G.S
10:22 NCR 2833 -
. 150B-2 1.5(a)(4)
. 150B-2 1.5(a)(4)
. 150B-21. 5(a)(4)
. 150B-21.5
. 150B-21. 5(a)(5)
2834
10:22 NCR 2834
10:21 NCR 2689 - 2690
10:21 NCR 2690
10:21 NCR 2690
10:21 NCR 2690 - 2691
10:21 NCR 2691
10:21 NCR 2691
10:21 NCR 2691 - 2692
10:21 NCR 2692 - 2693
10:21 NCR 2693 - 2694
10:21 NCR 2694 -
10:21 NCR 2695
2695
10:21 NCR 2695 - 2696
10:21 NCR 2696
10:21 NCR 2696
10:21 NCR 2696 - 2698
10:21 NCR 2698
10:21 NCR 2698
10:22 NCR 2834 -
10:22 NCR 2834 -
2835
2835
10:22 NCR 2835
10:22 NCR 2835 - 2837
10:22 NCR 2837
10:22 NCR 2838 - 2839
10:22 NCR 2839 - 2842
10:22 NCR 2842 - 2843
10:22 NCR 2843
10:22 NCR 2843
10:22 NCR 2843 - 2845
10:22 NCR 2845 - 2848
10:22 NCR 2848
10:22 NCR 2848 - 2849
10:22 NCR 2849
10:22 NCR 2849
10:22 NCR 2849
10:22 NCR 2849
1:4 NORTH CAROLINA REGISTER May 15, 1996 205
APPROVED RULES
21 NCAC 32H .0902
21 NCAC 54 .2704 *
21 NCAC 54 .2706 *
21 NCAC 68 .0101 *
21 NCAC 68 .0102
21 NCAC 68 .0201
21 NCAC 68 .0202 - .0206 *
21 NCAC 68 .0207
21 NCAC 68 .0208 - .0213 *
21 NCAC 68 .0401 - .0403 *
21 NCAC 68 .0404
21 NCAC 68 .0405 - .0407 *
21 NCAC 68 .0701 - .0703 *
21 NCAC 68 .0704 - .0705
21 NCAC 68 .0706 - .0707 *
21 NCAC 68 .0708
21 NCAC 68 .0709 *
10:22 NCR 2850
Not Required, G.S. 150B-21.5(5)
Not Required, G.S. 150B-21.5(5)
10:22 NCR 2850
10:22 NCR 2850
10:22 NCR 2850
10:22 NCR 2850
10:22 NCR 2850
10:22 NCR 2850
10:22 NCR 2850
10:22 NCR 2850
10:22 NCR 2850
10:22 NCR 2850
10:22 NCR 2850
10:22 NCR 2850
10:22 NCR 2850
10:22 NCR 2850
TITLE 10 - DEPARTMENT OF HUMAN RESOURCES
CHAPTER 3 - FACILITY SERVICES
SUBCHAPTER 3C - LICENSING OF HOSPITALS
SECTION .6200 - CONSTRUCTION
REQUIREMENTS
.6208 OBSTETRICAL DEPARTMENT
REQUIREMENTS
(a) The obstetrical unit shall be located so as to prevent
unrelated traffic through the unit and to provide for
reasonable protection of mothers from infection and from
cross-infection.
(b) An emergency communication system connected to
the operations and control station shall be provided by the
facility.
(c) Resuscitation facilities for neonates shall be provided
within the obstetrical unit and convenient to the delivery
room.
(d) A labor room shall be provided and shall meet the
following requirements:
(1) A minimum of 80 sq. ft. of area shall be pro-vided
per labor bed;
The labor rooms shall be located so as to permit
visual observation of each room from the nurses'
work station;
Labor rooms shall afford privacy, and shall be
conveniently located with reference to the deliv-ery
room;
If labor rooms also serve as birthing rooms, they
shall be equipped to handle obstetric and neona-tal
emergencies;
A labor room shall contain facilities for medica-tion,
hand washing, charting, and storage for
supplies and equipment;
At least one shower with direct access from
(2)
(3)
(4)
(5)
(6)
within the delivery unit shall be provided;
(7) At least two labor beds with adjacent toilet shall
be provided for each delivery room; and
(8) No more than two labor beds may be located in
one labor room.
(e) A toilet with hand-washing facilities shall be pro-vided
for the staff.
(f) A separate recovery room may be omitted in
facilities with less than 1500 births per year. When
provided, the recovery room shall meet the following
requirements:
(1) A recovery room shall contain not less than two
beds and shall have charting facilities located so
as to permit visual observation of all beds;
(2) Provisions for medicine dispensing, hand wash-ing,
clinical sink with bedpan washer, and
storage for supplies and equipment shall be
provided; and
(3) A toilet with hand washing facilities shall be
provided for staff.
(g) When a facility elects to provide labor, delivery and
recovery room (LDR) service as a part of its total services,
the following requirements shall be met:
(1) Each LDR room shall have a minimum of 250
square feet of floor space exclusive of toilet
room, closet, or vestibule;
(2) A toilet directly accessible from each LDR room
shall be provided for use by that room only and
equipped with a clinical sink or other suitable
flushing device for emptying bed pans;
(3) Each LDR room shall be provided with directly
accessible shower for use by that room only;
(4) Each LDR room shall be equipped with oxygen,
suction, medical air, and electrical outlets; and
(5) Each LDR room shall contain facilities for
medication storage, hands-free hand washing,
charting, and storage for supplies and equipment.
(h) When a facility elects to provide labor, delivery,
206 NORTH CAROLINA REGISTER May 15, 1996 11:4
APPROVED RULES
recovery and postpartum (LDRP) service as a part of its
total services the following requirements shall be met:
(1) Each LDRP room shall meet the requirements
listed in Rulo .6208(h) of thia Section; Paragraph
(g) of this Rule; and
(2) Each LDRP room shall be counted as a single
patient room for purposes of determining the
facility's bed capacity.
(i) The following shall be provided:
(1) If analgesia is used, beds shall be equipped with
side rails; and
(2) There shall be facilities for examination and
preparation of patients.
(j) The obstetrical (OB) unit shall be provided with the
following services either in individual rooms, alcoves, or
other open spaces not subject to traffic:
(1) Scrub facilities with stations located adjacent to
each pair of delivery rooms and arranged to
minimize incidental splatter on nearby personnel
or supply carts;
(2) A storage room for equipment and supplies;
(3) One delivery room with support services meeting
the requirements of a surgical operating room
and support services referenced in Rule .6206 of
this Section if caesarean sections are to be
performed in the obstetrical delivery unit; and
(4) One janitor's closet exclusively for use by the
obstetrics unit.
(k) The obstetrical unit shall be provided with the
following services either in individual rooms, alcoves, or
other open spaces not subject to traffic, however, they may
be located either in the obstetrics unit or may be shared
with the surgical unit if arranged so as to avoid cross
traffic between the surgical and obstetrics units:
(1) Delivery unit control station located so as to
permit visual surveillance of all traffic which
enters the obstetrical unit;
(2) Supervisor's office or station;
(3) Medicine dispensing facilities;
(4) Scrub facilities with stations located adjacent to
each pair of delivery rooms and arranged so as
to minimize incidental splatter on nearby person-nel
or supply carts;
(5) Soiled workroom or a soiled holding room as a
part of a system for the collection and disposal
of soiled materials:
(A) A soiled workroom may not be shared
with the surgical unit and shall contain a
flushing device, a work counter and sink
equipped for hand washing, a waste recep-tacle,
and a linen receptacle; and
(B) A soiled holding room may be shared with
the surgical unit and shall be similar to the
soiled workroom except that the flushing
device and work counter may be omitted.
(6) Fluid waste disposal facilities convenient to the
delivery rooms; the flushing device in a soiled
workroom meets this requirement;
(7) Staff clothing change areas appropriate for male
and female personnel working within the obstet-rics
unit including lockers, shower, toilet, and
lavatory, and space for donning scrub suit and
boots;
(8) Lounge and toilet facilities for obstetrical staff;
(9) Stretcher storage provisions out of direct line of
traffic;
(10) Clean workroom, or clean supply room:
(A) A clean workroom or supply room is
required when clean materials require
assembly prior to use and this assembly is
performed within the obstetrics unit; and
(B) Clean workroom shall contain a work
counter, a sink equipped for hand wash-ing,
and space for clean and sterile sup-plies;
(11) Anesthesia workroom for the cleaning, testing,
and storage of anesthesia equipment with a work
counter and sink;
(12) Space for storage of nitrous oxide and oxygen
cylinders;
(13) A storage room for equipment and supplies used
in a surgical unit;
(14) Delivery room(s) used for no other purpose than
for the completion of labor and delivery and
including a minimum clear area of 300 square
feet, exclusive of fixed and movable cabinets and
shelves. The minimum room dimension shall be
16 feet; and
(15) One delivery room meeting the following re-quirements
if caesarean sections are to be per-formed
in the obstetrics unit:
(A) The delivery room shall meet the require-ments
for surgical operating rooms; and
(B) Support services required for surgical
operating rooms shall be provided.
History Note: Authority G.S. 131E-79;
Eff. January 1, 1996;
Amended Eff. Max 1. 1996.
CHAPTER 26 - MEDICAL ASSISTANCE
SUBCHAPTER 26B - MEDICAL ASSISTANCE
PROVIDED
SECTION .0100 - GENERAL
.0105 EYEGLASSES AND OPTOMETRIC
SERVICES
(a) All visual aids require prior approval.
(a) (b) No eyeglass frames other than frames made of
zylonite zylonite, metal, or combination zylonite and metal
shall be covered.
fb) (c) Eyeglass repair or replacement, or any other
1:4 NORTH CAROLINA REGISTER May 15, 1996 207
APPROVED RULES
service costing five dollars ($5.00) or less, shall not be
covered.
fe) (d] Prior approval shall be required for more than
one refraction per year for any person up to age 25; more
than one refraction every two years for any person aged 25
and over; all eyeglasooo and other visual aide; and all
repairs and replacement of frames and lenses exceeding a
cost of five dollars ($5.00).
History Note: Authority G.S. 108A-25(b); 108A-54; 42
C.F.R. 440.120;
Eff. February 1, 1976;
Readopted Eff. October 31, 1977;
Amended Eff. August _L 1996; January 1, 1984.
TITLE 12 - DEPARTMENT OF JUSTICE
CHAPTER 2 - OFFICE OF THE ATTORNEY
GENERAL
SUBCHAPTER 21 - COMPANY AND RAILROAD
POLICE
SECTION .0100 - GENERAL PROVISIONS
.0101 LOCATION
The administrative office for the commissioning of
company police officers and the certification of company
police agencies is located in the office of the Criminal
Justice Standards Division. Correspondence shall be
directed to:
Company Police Administrator
Criminal Justice Standards Division
Post Office Drawer 149
Ral e igh. North Carolina 27602 0149
Company Police Program
Post Office Drawer 310
Raleigh. North Carolina 27602-0310
Telephone: (919) 733-2530
History Note; Authority G.S. 74E; 143A-54;
Eff. February 1, 1976;
Amended Eff. September 9, 1976;
Readopted Eff. January 5. 1978;
.Amended Eff. August 1± 1996; August 2, 1993; November
1. 1984; September 1, 1981.
SECTION .0200 - COMMISSIONED
.0206 FEE
(a) Upon notification that an application for a company
police agency certification or a company police officer
commission has be«n approved, the applicant shall forward
a certified check or money order made out to the North
Carolina Department of Justice to the:
Company Police Administrator
Criminal Justice Standards Division
Poet Offioo Drawer 149
Rale igh. North Carolina 27602 0119
Company Police Program
Post Office Drawer 310
Raleigh. North Carolina 27602-0310
Telephone: (919) 733-2530
(b) The following fees shall be due and payable prior to
the issuance of company police agency certification or a
company police officer commission.
(1) Application for certification as a company police
agency - $250.00.
(2) Annual renewal of certification as a company
police agency - $200.00.
(3) Application for reinstatement of certification as
a company police agency - $1,000.00.
(4) Application for commission as a company police
officer - $100.00.
(5) Annual renewal of commission as a company
police officer - $50.00.
(6) Application for reinstatement of commission as
a company police officer - $150.00.
(c) Currently commissioned company police officers
will be required to submit the Application for Commission
as a company police officer fee as set forth in Subpara-graph
(b)(4) of this Rule.
History Note; Authority G.S. 74E-12;
Eff. February 1. 1976;
Amended Eff. September 9, 1976;
Readopted Eff. January 5, 1978;
Amended Eff. August 2, 1993; September 1, 1981;
Recodified from 12 NCAC 21 .0205 Eff. August 2, 1993;
Amended Eff. August 1± 1996.
.0210 LIABILrTY rNSURANCE
(a) Any applicant for a non-public company police
agency certification must file with the Company Police
Administrator, either a copy of the liability insurance
policy or a certificate of self insurance, at the following
address:
Company Police Administrator
Criminal Justice Standards Division
Post Office Drawer 1 49
Raleigh, North Carolina 27602 01 49
Company Police Program
Post Office Drawer 310
Raleigh, North Carolina 27602-0310
Telephone: (919) 733-2530
(b) Any notice of cancellation by an insurance carrier
shall be delivered by certified mail, return receipt re-quested,
to the following address:
Company Police Administrator
Criminal Justice Standards Division
Post Offic e Drawe r 149
Raleigh, North Carolina 27602 01 49
Company Police Program
208 NORTH CAROLINA REGISTER May 15, 1996 11:4
APPROVED RULES
Post Office Drawer 310
Raleigh, North Carolina 27602-0310
Telephone: (919) 733-2530
History Note: Authority G.S. 74E-3;
Eff. August 2, 1993;
Amended Eff. August 1. 1996.
TITLE 15A - DEPARTMENT OF
ENVIRONMENT, HEALTH, AND NATURAL
RESOURCES
CHAPTER 18 - ENVIRONMENTAL HEALTH
SUBCHAPTER 18A - SANITATION
SECTION .1800 - SANITATION OF LODGING
PLACES
.1814 DISPOSAL OF GARBAGE AND TRASH:
PREMISES
(a) All garbage and trash shall be collected and stored
in covered containers in such a manner as not to create a
nuisance. Garbage and trash storage containers shall be
kept clean and in good repair.
(b) There shall be no fly- or mosquito-breeding places,
rodent harborages, or undrained areas on the premises.
The premises shall be kept neat and clean. Rubbish, litter
and other items not used in the operation of the establish-ment
shall not be permitted to accumulate on the premises.
(c) Facilities shall be provided for the washing and
storage of garbage and trash containers, mops, mop
buckets, mop wringers, and any other equipment used in
the cleaning of the lodging establishment. Cleaning
facilities shall include combination faucet, hot and cold
water, hose bibb with a backflow prevention device and
curved curbed impervious pad sloped to drain or other
equivalent facilities or methods. Where dumpsters are
used, a contract for off-site cleaning shall constitute
compliance with the provision for cleaning facilities for
such units. A current copy of the dumpster cleaning
contract shall be made available at the time of inspection.
History Note: Authority G.S. 130A-248;
Eff. February 1. 1976;
Readopted Eff. December 5, 1977;
Amended Eff. August 1± 1996; Januarx 1 , 1996; September
1, 1990.
CHAPTER 20 - LABORATORY SERVICES
SUBCHAPTER 20D - CERTIFICATION AND
IMPROVEMENT
SECTION .0200 - LABORATORY CERTIFICATION
.0243 CHEMISTRY QUALITY ASSURANCE
(a) The following general requirements for chemistry
quality assurance (QA) shall be met:
(1) All quality control information shall be available
for inspection by the certification officer;
(2) A manual of analytical methods and the labora-tory's
QA plan shall be available to the analysts:
(3) Class S weights or higher quality weights shall
be available to make periodic checks on the
accuracy of the balances. Checks shall be within
range of the manufacturer's guidelines. A
record of these checks shall be available for
inspection. The specific checks and their fre-quency
are to shall be as prescribed in the
laboratory's QA plan or the laboratory's opera-tions
manual. These checks shall be performed
at least once a month.
(4) Color standards or their equivalent, such as
built-in internal standards, shall be available to
verify wavelength settings on spectrophotom-eters.
These checks shall be within the manufac-turer's
tolerance limits. A record of the checks
shall be available for inspection. The specific
checks and their frequency shall be as prescribed
in the laboratory's QA plan or the laboratory's
operations manual. These checks shall be per-formed
at least every six months.
(b) The laboratory shall analyze performance samples as
follows:
(1) United States Environmental Protection Agency
performance samples shall be analyzed semi-annually.
Results shall be within control limits
established by EPA for each analyte for which
the laboratory is or wishes to be certified.
(2) Double blind and blind samples shall be analyzed
when submitted to a certified laboratory and
results shall be within established control limits;
these data shall be of equal weight to the EPA
performance sample data and on site quality
control sample data in determining the labora-tory's
certification status.
(3) On-site quality control samples shall be analyzed
when presented to the laboratory by the certifica-tion
evaluator and results shall be within estab-lished
control limits. These data shall be of
equal weight to the EPA performance evaluation
sample data and the double blind sample data in
determining the laboratory's certification status.
(4) A laboratory shall have correctly analyzed two
out of the last three performance samples for
each analyte for which it is certified. In the
event that a laboratory is decertified for failing
to correctly analyze two out of the last three
performance samples, the laboratory shall cor-rectly
analyze two consecutive performance
samples to have their certification reinstated.
The performance samples shall be analyzed no
1:4 NORTH CAROLINA REGISTER May 15, 1996 209
APPROVED RULES
less than 30 days apart. A laboratory with less
than three performance samples shall have
successfully analyzed a minimum of two perfor-mance
samples before their certification status
may be determined.
(5) Unacceptable performance on any of the samples
in Paragraph (b) of this Rule shall be corrected
and explained in writing within 30 days and
submitted to the certification evaluator.
(c) The minimum daily quality control (QC) for chemis-try
shall be as follows:
( 1 ) Inorganic Contaminants:
(A) At the beginning of each day that samples
are to be analyzed, a standard curve com-posed
of at least a reagent blank and three
standards covering the sample concentra-tion
range shall be prepared. A standard
curve is not required on each day of anal-ysis
for samples analyzed for Nitrate by
manual cadmium reduction or for Cya-nide.
The standard curve shall be verified
each day by analyzing a calibration stan-dard
and a reagent blank. The calibration
standard must be within + 10 percent of
its true value in order to use the standard
curve. If it is not within 10 percent of the
true value, a new standard curve shall be
prepared.
(B) The laboratory shall analyze a QC sample
(EPA QC sample or equivalent) at the
beginning of the sample run, at the end of
the sample run, and every 20 samples,
with recoveries not to exceed + 10 per-cent
of the true concentration. The source
of this QC sample shall be different from
the source used for the calibration stan-dards
in Part (c)(1)(A) of this Rule.
(C) The laboratory shall run an additional
standard or QC check at the laboratory's
lowest detectable limit for the particular
analyte. The laboratory shall not report a
value lower than the lowest standard or
QC check analyzed.
(D) The laboratory shall add a known spike to
a minimum of 10 percent of the routine
samples (except when the method specifies
a different percentage, i.e. furnace meth-ods)
to determine if the entire analytical
system is in control. The spike concentra-tion
shall not be substantially less than the
background concentration of the sample
selected for spiking. The spike recoveries
shall not exceed ± 10 percent of the true
value.
(E) All compliance samples analyzed by
graphite furnace shall be spiked to deter-mine
absence of matrix interferences with
(F)
recoveries + 10 percent of the true value
of the spike concentration.
The laboratory shall run a duplicate sam-ple
every 10 samples with duplicate values
within ± 10 percent of each other.
(G) Precision and accuracy data may be com-puted
from the analyses of check samples
of known value used routinely in each
analytical procedure. This data shall be
available for inspection by the laboratory
evaluator.
(2) Organic Contaminants:
(A) Quality control specified in the approved
methods referenced in Rule .0241 of this
Section shall be followed.
(B) Analysis for regulated volatile organic
chemicals under 15A NCAC 18C .1515
shall only be conducted by laboratories
that have received conditional approval by
EPA or the Department according to 40
C.F.R. 141.24(g)(10) and (11) which is
hereby incorporated by reference includ-ing
any subsequent amendments and edi-tions.
A copy is available for inspection
at the Department of Environment,
Health, and Natural Resources, Division
of Laboratory Services, 306 North
Wilmington Street, Raleigh, North Caro-lina.
Copies of 40 C.F.R. 141-143 may
be obtained by contacting the EPA Drink-ing
Water Hotline at 800-426-4791 at no
charge.
(C) Analysis for unregulated volatile organic
chemicals under 15A NCAC 18C .1516
shall only be conducted by laboratories
approved under Part (c)(2)(B) of this
Rule. In addition to the requirements of
Part (c)(2)(B) of this Rule, each labora-tory
analyzing for EDB and DBCP shall
achieve a method detection limit for EDB
of 0.00001 mg/1 and DBCP of 0.0002
0.00002 mg/1, according to the procedures
in Appendix B of 40 C.F.R. Part 136
which is hereby incorporated by reference
including any subsequent amendments anc
editions. A copy may be obtained at nc
charge by contacting the Department o
Environment, Health, and Natural Re
sources. Division of Laboratory Services
306 North Wilmington Street, Raleigh
North Carolina.
(D) The laboratory shall achieve the methoc
detection limits as listed in 40 CFF
141 .24(f)( 18) according to the procedure:
in Appendix B of 40 CFR Part 136 whicl
is hereby incorporated by reference in
eluding any subsequent amendments an<
210 NORTH CAROLINA REGISTER May 15, 1996 11:
APPROVED RULES
editions. A copy may be obtained at no
charge by contacting the Department of
Environment, Health, and Natural Re-sources,
Division of Laboratory Services,
306 North Wilmington Street, Raleigh,
North Carolina.
History Note: Authority G.S. 130A-315;
Eff. December 1, 1991;
Amended Eff. August L 1996; January 1, 1996; October 1,
1994; April 1, 1993.
TITLE 17 - DEPARTMENT OF REVENUE
CHAPTER 6 - INDIVIDUAL INCOME TAX
DIVISION
SUBCHAPTER 6B - INDIVIDUAL INCOME TAX
SECTION .0600 - TAX CREDITS
.0612 TAX CREDIT FOR QUALIFIED
BUSINESS INVESTMENTS
(a)
A tax credit io allowed to individuals who make
qualified invoatmonta during taxable yoara beginning on or
after January 1, 1988 , in equity securiti es or oubordinated
debt of a qualified investment organization, a qualifi ed
buainoas venture, a qualified grantee business, or a North
Carolina—Enterprise—Corporation,—including a—limited
partnership in whioh a North Carolina Enterprise Corpora
tion is the only general partner.—These organizations are
defined in G.S. 105 163.010 and are required to register
with the Secretary of State.
{&)
—
The credit is twenty five peroent of th e amount
invested or one hundred thousand dollars ($100,000),
whichovor is loss. To bo eligible for the crodit a taxpayer
must file an application (Form D 499) for the credit with
the Seoretary of Revenue on or before April 15 of th e year
following th e calendar year in whioh the investment was
made. With respect to the application requirements
provided in G.S. 105-163.01 1(c), the The date set for
filing the application may be extended provided a written
statement is furnished by April 15 requesting that addi-tional
time to file the application be allowed. An extension
of time to file the individual income tax return. Form
D-400, does shall not extend the time for filing Form
D-499. The credit i s allowable for the taxabl e year
beginning during the calendar year following
year in which the investment was made and any unused
orodit oon be oarried forward for the next suooooding five
(e)
An investment by a partnership entity in one or
entitled to a credit for investments in a partnership if the
partnership—is a qualifying organization—id entified—in
Paragraph (a) of this Rule , inoluding a limited partnership
in which a North Carolina Enterprise Corporation is the
only general partner.
(d) A corporation that invests in the equity securities of
a North Carolina Enterprise Corporation or a qualified
investment organization is allowed a crodit of twenty five
percent of the amount invested or seven hundred fifty
thousand dollars ($750,000), whichever is less.—With
respect to an S corporation, eaoh shareholder is allowed as
a credit against his individual income tax an amount equal
to his pro rata share of the tax credits for which the S
corporation is eligibl e .—An S corporation's investment in
a qualified business venture or a qualified grantee business
does not qualify for the tax crodit at the corporate level and
shareholders aro not entitled to a tax crodit for tho S
corporation' s investment; however, individual shareholders
are e nt i tl ed to a oredit for their investments in an S
corporation which invosts in a North Carolina Enterprise
corporation or a qualified investment organization.
(o) Except for th e tax credits listed in Rule ,37M(a) of
this Subchapter, an estate or trust is entitled to the same
tax credit s allowed an individual; thoroforo, an estate or
trust is ontitlod to a tax crodit for an investment in a
qual i fi ed organization id entified in Paragraph (a) of thi s
Rul o,
Tho provisions in Paragraphs (a) through (e) of this Rule
are applicable to qualified business investments made prior
to January 1, 1991.
History Note: Authority G.S. 105-131. 8(b); 105-163.010;
105-163.011; 105-163.012; 105-163.013; 105-163.14;
105-262;
Eff. September 1, 1992;
Amended Eff. July_ L 1996; May 1, 1994.
SECTION .3700 - ESTATES AND TRUSTS
.3716 FNCOME TAX RETURN FOR ESTATES
AND TRUSTS
(a) The federal taxable income of the fiduciary is shall
be the starting point for preparing a North Carolina
Fiduciary Return, Income Tax Return for Estates and
Trusts, Form D-407. Form D 407 and requires tho same
additions,—deductions,—and
—
transitional—adjustments—Se
federal taxable income as required for individuals.
(b) The fiduciary responsible for admini stering the
th o calendar estate or trust i s responsible for filing the fiduciary return
and paying the tax. The

.Az NORTH CAROLINA
REGISTER
VOLUME 11 • ISSUE 4 • Pages 181 - 269
May 15, 1996
MAY *'< 1996 1
IN THIS ISSUE
' "" Final Decision Letter
Acupuncture Licensing Board
Administration
:
. Cultural Resources
Environment, Health, and Natural Resources
Human Resources
Justice
Medical Board
Psychologists, Board ofPracticing
Revenue
Soil Scientists, Board for Licensing of
Substance Abuse Professionals Certification
List of Rules Codified
Rules Review Commission
Contested Case Decisions
PUBLISHED BY
The Office ofAdministrative Hearings
Rules Division
PO Drawer 27447
Raleigh, NC27611-7447
Telephone (919) 733-2678
Fax (919) 733-3462
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
NORTH CAROLINA
Volume 1 1 , Issue 4
Pages 1 8 1 - 269
May 15, 1996
This issue contains documents officially
filed through April 24, 1996.
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601)
PO Drawer 27447
Raleigh, NC 27611-7447
(919) 733-2678
FAX (919) 733-3462
Julian Mann III, Director
James R. Scarcella Sr., Deputy Director
Molly Masich, Director of APA Services
Ruby Creech, Publications Coordinator
Teresa Kilpatrick, Editorial Assistant
Jean Shirley, Editorial Assistant
IN THIS ISSUE
I. IN ADDITION
Environment, Health, and Natural Resources
Wildlife Resources Commission 182
Voting Rights Act 181
II. RULE-MAKING AGENDA
Environment, Health, and Natural Resources
Coastal Management 183-187
Environmental Health/Health Services 183-187
Environmental Management 183 - 187
III. PROPOSED RULES
Cultural Resources
USS NORTH CAROLINA Battleship 188
Environment, Health, and Natural Resources
Coastal Resources Commission 190-191
Wildlife Resources Commission 191 - 193
Human Resources
Child Day Care Commission 188-190
IV. TEMPORARY RULES
Administration
State Building Commission . 194 - 196
Human Resources
Medical Assistance 196 - 199
Licensing Boards
Soil Scientists, Board for Licensing of 200 - 204
V. APPROVED RULES
Environment, Health, and Natural Resources
Health Services 209 - 21
1
Human Resources
Medical Assistance 207 - 208
Medical Care Commission 206 - 207
Justice
Attorney General/Company Police 208 - 209
Licensing Boards
Acupuncture Licensing Board 220 - 221
Medical Board 221-236
Psychologists, Board of Practicing 236 - 238
Substance Abuse Professionals Certification 238 - 247
Revenue
Individual Income Tax Division 211 - 212
Sales and Use Tax 212-220
VI. LIST OF RULES CODIFIED 248-256
VII. RULES REVIEW COMMISSION 257-264
VIII. CONTESTED CASE DECISIONS
Index to ALJ Decisions 265 - 268
IX. CUMULATIVE INDEX 1-14
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IN ADDITION
This Section contains public notices that are required to be published in the Register or have been approved by the
Codifier of Rules for publication.
U.S. Department of Justice
Civil Rights Division
DLP:DHH:RA:emr:lrj Voting Section
DJ 166-012-3 P.O. Box 66128
96-0523 Washington, D.C. 20035-6128
April 5, 1996
David A. Holec, Esq.
City Attorney
P.O. Box 1388
Lumberton, North Carolina 28359
Dear Mr. Holec:
This refers to the January 22, 1996, annexation to the City of Lumberton in Robeson County, North Carolina,
submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your
submission on February 5, 1996.
The Attorney General does not interpose any objection to the specified change. However, we note that the
failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. See
the Procedures for the Administration of Section 5 (28 C.F.R. 51.41).
Sincerely,
Deval L. Patrick
Assistant Attorney General
Civil Rights Division
By:
Elizabeth Johnson
Acting Chief, Voting Section
11:4 NORTH CAROLINA REGISTER May 15, 1996 181
IN ADDITION
North Carolina Wildlife Resources Commission
512 N. Salisbury Street, Raleigh. North Carolina 27604-1188, 919-733-3391
Charles R. Fullwood, Executive Director
PROCLAMATION
Charles R. Fullwood, Executive Director, North Carolina Wildlife Resources Commission, acting pursuant to North
Carolina General Statute §1 13-292 (clj and authority duly delegated by the Wildlife Resources Commission, hereby declares
that effective at 12:00 midnight on Wednesday, April 17, 1996, the season for harvesting striped bass by hook-and-line is
closed in all inland and joint waters of the Roanoke River Striped Bass Management Area.
The Roanoke River Striped Bass Management Area is defined as the inland and joint fishing waters of the Roanoke
River, extending from its mouth to Roanoke Rapids Dam and all tributaries of the Roanoke River, including but not limited
to, the Cashie. Middle, and Eastmost Rivers and their tributaries.
This proclamation shall remain in effect until a new proclamation reopening the described waters or portions thereof
for striped bass fishing is issued.
NOTES:
a) This Proclamation is issued under the authority of N.C.G.S. §§1 13-132; 1 13-134; 1 13-292; 1 13-304: and
113-305.
b) [he striped bass harvest quota for the hook and line sport fisher} ot the Roanoke Rr.er Striped Bass
Management .Area has been met. and the area is closed for striped bass fishing until reopened as prescribed
herein.
c) .All striped bass regardless of condition taken subsequent to the effective date and time of this Proclamation
shall be immediately returned to the waters where taken and no striped bass may be possessed.
d) Any person who violates this Proclamation also violates applicable law and is subject to the sanctions
provided by law.
NORTH CAROLINA WILDLIFE RESOURCES COMMISSION
by: Charles R. Fullwood Date: 04/10/96
Executive Director
182 NORTH CAROLINA REGISTER May 15, 1996 11:4
RULE-MAKING AGENDA
TITLE ISA
DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES
This supplemental agenda will serve as the notice of rule-making proceedings for the following rule-making bodies
from May 15, 1996 through July 15, 1996:
Environmental Management Commission - to rules codified in 15A NCAC 2;
Coastal Resources Commission - to rules codified in 15A NCAC 7;
Commission for Health Services - to rules codified in 15A NCAC 18A;
This agenda was previously published in 10:18 NCR 2317-2397 in it's entirety.
DEHNR Regulatory Agenda Index - April 24, 1996
COASTAL MANAGEMENT
APA# SUBJECT RULE CITATION #
E1951 General Use Standards for Hazardous
Areas
15A NCAC 7H .0306
E1952 General Permits (General Conditions) 15A NCAC 7H .1104, .1204, .1304, .1404, .1504,
.1604, .1704, .1804, .1904, .2004 and .2104
E1953 Reserve Components:
Reserve Use Requirements
15A NCAC 70 .0105, .0202
ENVIRONMENTAL HEALTH/ENV. HEALTH SERVICES
APA# SUBJECT RULE CITATION #
H6250 Child Nutrition Programs 15A NCAC 21 J .0101 (This rule may be filed as a
temporary rule)
H6251 Child Nutrition Programs 15A NCAC 21 I .0101
H6259 Rules Governing the Sanitation of
Lodging Places
15A NCAC 18A .1805
ENVIRONMENTAL MANAGEMENT/AIR OUALITY
APA# SUBJECT RULE CITATION #
E1838 Address Correction 15A NCAC 2D .0104, .0105, .0501, .0953 & .1305
15A NCAC 2Q .0104, .0307 & .0521
El 937 Incinerators 15A NCAC 2D .1204 and .1206
El 939 Visible Emissions 15A NCAC 2D .0521
DEHNR Regulatory Agenda - April 24, 1996
APA #: E1838
SUBJECT: Address Correction
RULE CITATION #: 15A NCAC 2D .0104, .0105, .0501, .0953 & .1305; 2Q .0104, .0307 & .0521
AUTHORITY: G.S. 150B-21.6; 143-215. 3(a)(1); 150B-21.2(b); 143-215. 107(A)(3), (7); 143-215. 107(a)(5);
119-26;
143-215.108; 143-215.109; 143-215.4(b); 143-215.3(a)(l), (3); 143-215. 107(a)(10); 143-215.111(4)
DIVISION/SECTION: ENVIRONMENTAL MANAGEMENT/ATR QUALITY
DIVISION CONTACT: Thomas Allen
DIVISION CONTACT TEL#: (919)733-1489
DATE INITIATED: 4/3/96
DURATION OF RULE: Permanent
TYPE OF RULE:
STAGE OF DEVELOPMENT: Concept Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
To change the mailing address for the Air Quality Section.
SCOPE/NATURE/SUMMARY :
11:4 NORTH CAROLINA REGISTER May 15, 1996 183
RULE-MAKING AGENDA
The Air Quality Section has a new post office box. Eight rules need to be amended to correct the post
office box. These rules are 15A NCAC 2D .01», .0105, .0501. .0953, and .1305 and 2Q .0104, .0307,
and .0521.
APA #: E1937
SUBJECT: Incinerators
RULE CITATION #: 15A NCAC 2D .1204 and .1206
AUTHORITY: G.S. 143-215. 3(a)(1): 143-215. 107(a)(4), (5); 143-215. 107(a)(5)
DIVISION/SECTION: ENVIRONMENTAL MANAGEMENT/AIR QUALITY
DIVISION CONTACT: Thomas Allen
DIVISION CONTACT TEL#: (919)733-1489
DATE INITIATED: 4/3/96
DURATION OF RULE: Permanent
TYPE OF RULE:
STAGE OF DEVELOPMENT: Concept Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
To clarify that temperature measuring devices are required to have a quality assurance program and to
eliminate the primary chamber temperature requirement for medical waste incinerators.
SCOPE/NATURE/SUMMARY :
15A NCAC 2D .1204, Reporting and Recordkeeping, requires "monitoring devices and systems" to have
a quality assurance program under Paragraph (d). While 15A NCAC 2D .1204(d) only uses the phrase
"monitoring device and systems", it was the original intent that this phrase include and be synonymous
with"measuring and recording device." (Paragraph (a) of this Rule requires continuous temperature
measuring and recording devices.) This Rule needs to be revised to clarify this intent.
Under 15A NCAC 2D .1206, Operational Standards, the primary chamber of a medical waste incinerator
is required to be at least 1200 degrees fahrenheit. There is some ambiguity whether material can be loaded
into the incinerator and the primary chamber brought up to 1200 degrees fahrenheit or the primary chamber
is to be at 1200 degrees fahrenheit before any material is loaded. The temperature requirements in the air
quality rules for medical waste incinerators come from solid waste management rules. The temperature
requirements are intended to be the same as those in solid waste management rules, so the owner or
operator of the incinerator would have only one set of temperature requirements to meet. Although the
primary chamber temperature serves a solid waste management purpose, it does not serve any air quality
purpose. To eliminate the confusion that the primary chamber temperature requirement has caused in the
air quality rules, it should be removed. (The rule will retain the requirement that gases in the secondary
chamber are subject to at least 1800 degrees fahrenheit for least one second, which ensures that proper aii
pollution control is achieved.)
APA #: E1939
SUBJECT: Visible Emissions
RULE CITATION #: 15A NCAC 2D .0521
AUTHORITY: G.S. 143-215. 3(a)( 1); 143-215. 107(a)(5)
DIVISION/SECTION: ENVIRONMENTAL MANAGEMENT/AIR QUALITY
DIVISION CONTACT: Thomas Allen
DIVISION CONTACT TEL#: (919)733-1489
DATE INITIATED: 4/3/96
DURATION OF RULE: Permanent
TYPE OF RULE:
STAGE OF DEVELOPMENT: Concept Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
To use consistent terminology in the visible emission rule and possibly change the opacity limit.
SCOPE/NATURE/SUMMARY :
15A NCAC 2D .0521. Control of Visible Emissions, uses a different phrase to describe pre-July 1, 197
sources and post July 1, 1971 sources. The pre-July 1, 1971 phrase is "for sources existing as of July 1
1971." The post July 1, 1971 phrase is "for sources established after July 1, 1971." The use of tw
184 NORTH CAROLINA REGISTER May 15, 1996 11:
RULE-MAKING AGENDA
different words has lead to confusion. The same word should be used in both phrases. Other related
issues also need to be clarified. Should the date be the date that the source was manufactured or should
it be the date that the source was originally installed at the facility? There are several options. One is to
rewrite the phrases to read "for sources manufactured as of July 1, 1971" and "for sources manufactured
after July 1, 1971." Another is to rewrite the phrases to read "for sources located at the facility as of July
1, 1971" and for sources located at the facility after July 1, 1971." Another possible option would be to
eliminate the date altogether and require all sources to meet a 20% opacity standard.
APA #: E1951
SUBJECT: General Use Standards for Ocean Hazardous Areas
RULE CITATION #: 15A NCAC 7H .0306
AUTHORITY: G.S. 113A-107; 113A-1 13(b)(6); 113A-124
DIVISION/SECTION: COASTAL MANAGEMENT
DIVISION CONTACT: Preston Pate
DIVISION CONTACT TEL#: (919)726-7021
DATE INITIATED: 4/23/96
DURATION OF RULE: Permanent 4/1/97
TYPE OF RULE:
STAGE OF DEVELOPMENT: Concept Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
Response to Rules Review Commission Objections.
SCOPE/NATURE/SUMMARY :
The rules involved are broadly worded to apply to all types of development on the oceanfront. The
proposed changes will make some of them clearer and repeal those that are considered unnecessary.
APA #: El 952
SUBJECT: General Permits (General Conditions)
RULE CrTATION #: 15A NCAC 7H .1104, .1204, .1304, .1404, .1504, .1604, .1704, .1804, .1904, .2004
and .2104
AUTHORITY: G.S. 113A-107; 113A-107(a); 113A-107(b); 113A-113(b); 113A-118.1; 113A-124; 113-229(cl)
DIVISION/SECTION: COASTAL MANAGEMENT
DIVISION CONTACT: Preston Pate
DIVISION CONTACT TEL#: (919)726-7021
DATE INITIATED: 4/23/96
DURATION OF RULE: Permanent 4/1/97
TYPE OF RULE:
STAGE OF DEVELOPMENT: Concept Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
Response to Rules Review Commission Objections.
SCOPE/NATURE/SUMMARY :
Existing general permits all have clauses explaining the discretion staff has to withhold using a general
permit to approve development upon finding the potential for significant impacts to the environment,
historic resources, etc. The RRC has objected to current wording of the paragraphs providing such
discretion and is asking that the rules be more clearly worded. The proposed change will provide that
clarity.
APA #: El 953
SUBJECT: Reserve Components: Reserve Use Requirements
RULE CITATION #: 15A NCAC 70 .0105, .0202
AUTHORITY: G.S. 113-3; 113-8; 143B-10
DIVISION/SECTION: COASTAL MANAGEMENT
DIVISION CONTACT: Rich Shaw
DIVISION CONTACT TEL#: (919)733-2293
DATE INITIATED: 4/23/96
DURATION OF RULE: Permanent 4/1/97
NORTH CAROLINA REGISTER May 15, 1996 185
RULE-MAKING AGENDA
TYPE OF RULE:
STAGE OF DEVELOPMENT: Draft Rule Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
Two new coastal reserve sites have been acquired by the state for inclusion in the NC Coastal Reserve.
Neither of these sites is listed under the existing description of reserve components in Subchapter 70. This
amendment adds these two sites to be covered by the NCAC rules governing coastal reserve sites.
SCOPE NATURE SUMMARY :
The purpose of these rules is to add the names of two sites that have been acquired and approved for
designation as part of the NC Coastal Reserve. A second change will amend one of the current general
use standards to clarify that incompatible uses are any fishing, hunting or trapping activities that are
prohibited by both state and local regulations. Heretofore, the rule referred only to used prohibited by state
regulations.
APA #: H6250
SUBJECT: Child Nutrition Programs
RULE CITATION #: 15A NCAC 21J .0101
AUTHORITY: G.S. 130A-29
DIVISION/SECTION: MATERNAL-CHILD HEALTH
DIVISION CONTACT- Alice Lenihan
DIVISION CONTACT TEL#: (919)715-0636
DATE INITIATED: 4/17/96
DURATION OF RULE: Temporary 6/10/96
TYPE OF RULE:
STAGE OF DEVELOPMENT: Concept Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
Pursuant to House Bill 229 (Continuation Budget Operations Appropriations Act of 1995). the 16 personnel
positions in the Department of Public Instruction that have responsibility in the areas of the federal Child
andAdult Care Food Program and the Summer Food Sen ice Program are transferred from the Department
of Environment, Health, and Natural Resources, effective October 1. 1995. Adoption of these regulations
is required for the continued administration of these two programs by the Department of Environment,
Health, and Natural Resources, Division of Maternal and Child Health.
SCOPE/NATURE/SUMMARY :
Proposal is to adopt and incorporate by reference the Federal Regulations for the Child and Adult Care
Feeding Program and Summer Feeding Program. The administration of these programs was transferred
from the Department of Instruction (DPI) to Department of Environment. Health, and Natural Resources,
effective 10/1/95. DPI did not have APA Rules for the programs.
These rules may be filed as temporary rules.
APA #: H6251
SUBJECT: Child Nutrition Programs
RULE CITATION #: 15A NCAC 211 .0101
AUTHORITY: G.S. 130A-29
DIVISION/SECTION: MATERNAL-CHILD HEALTH
DIVISION CONTACT: Alice Lenihan
DIVISION CONTACT TEL#: (919)715-0636
DATE INITIATED: 4/17/96
DURATION OF RULE: Permanent 4/1/97
TYPE OF RULE:
STAGE OF DEVELOPMENT: Concept Stage
GOV LEVELS AFFECTED: None
SCOPE 'NATURE/SUMMARY :
Proposal is to adopt and incorporate by reference the Federal Regulations for the Child and Adult Care
Feeding Program and Summer Feeding Program. The administration of these programs was transferred
from the Department of Public Instruction (DPI) to the Department of Environment. Health, and Natural
186 NORTH CAROLINA REGISTER May 15, 1996 11:4
RULE-MAKING AGENDA
Resources, effective 10/1/95. DPI did not have APA Rules for the programs.
APA #: H6259
SUBJECT: Rules Governing the Sanitation of Lodging Places
RULE CITATION #: 15A NCAC 18A .1805
AUTHORITY: G.S. 130A-248
DIVISION/SECTION: ENVIRONMENTAL HEALTH/ENV. HEALTH SERVICES
DIVISION CONTACT: Malcolm Blalock
DIVISION CONTACT TEL#: (919)715-0929
DATE INITIATED: 4/24/96
DURATION OF RULE: Permanent 4/1/97
TYPE OF RULE:
STAGE OF DEVELOPMENT: Draft Rule Stage
GOV LEVELS AFFECTED: None
REASON FOR ACTION :
Rule 15A NCAC 18A .1805 (1) needs the word "places" changed to "establishment" in order for all rules
to have consistent wording. This change was inadvertently left out during the previous rule process.
SCOPE/NATURE/SUMMARY :
This rule governs the sanitation of lodging places.
n-4 NORTH CAROLINA REGISTER May 15, 1996 187
PROPOSED RULES
TITLE 7 - DEPARTMENT OF CULTURAL
RESOURCES
Notice is hereby given in accordance with G.S.
150B-21.2 that the USS NORTH CAROLINA
Battleship Commission intends to amend rules cited as
7 NCAC 05 .0202 - .0203, .0207 and repeal .0204.
Proposed Effective Date: April 1, 1997
Instructions on How to Demand a Public Hearing
(must be requested in writing within 15 days of notice):
Provide written request within fifteen (15) days of
publication of this notice to: Director, USS NORTH
CAROLINA Battleship Memorial, P.O. Box 480.
Wilmington, NC 28402-0480.
Reason for Proposed Action: Due to retirement of
the Sound and Light Show after 30 years of production
and minor modifications to the hours of operation of
the Memorial and required ratio of chaperones to
students.
Comment Procedures: Provide comments in writing
to the Director. USS NORTH CAROLINA Battleship
Memorial, P.O. Box 480, Wilmington, NC 28402-
0480. Comments must be submitted no later than 30
days after publication of this notice.
Fiscal Note: These Rules do not affect the expendi-tures
or revenues of state or local government funds.
student for organized school groups in grades kindergarten
through 6, and three dollars (S3. 00) per student for
organized school groups in grades 7 through 12.
(b) There is no charge for children under 6.
(c) Classroom teachers, aides, and chaperones accompa-nying
students in class field trips will be admitted without
charge at the rate of one teacher 'aide- chaperone for each
30 K) students.
(d) Tour groups under auspices of bona fide travel
agents will be offered a 20 percent discount. Tour direc-tors
and drivers will be admitted without charge.
(e) Any organized group of 20 or more will be offered
a 10 percent discount when tickets are purchased by a
single source.
Authority G.S. 143B-73.
.0204 SOUND AND LIGHT SHOW
(a) The admission pric e for th e sound and light show Qt
the Battleship L.S.S. North Carolina is three dollars and
fifty cents (S3. 50) for adults age 12 and over and one
dollar and sev e nty fiv e c e nts (Si. 75) for children age 6
through 1 1
.
fb)
—
There is no charge for children under 6 years of
(c) Tour groups unde r th e auspice s of bona fid e trav e l
age nts will be offe red a 20 pe rc e nt discount.—Tour direo
tors and drivers will be admitted without charge.
(d) Any organized group of 20 or more will be offered
a 10 perc ent discount whe n tick e ts are purchased by a
singl e source .
CHAPTER 5 - L.S.S. NORTH CAROLINA
BATTLESHIP COMMISSION
SECTION .0200 - USE REGULATIONS
.0202 HOURS OF OPERATION
The U.S. S. North Carolina Battleship Memorial
will be open during the following hours:
(1) The memorial will be open every day at 8:00
am;
(2) Closing time will be approximate ly—sunse t
except during-tthnee sutmmrmneerr mmoonntmhss..—Duuurninngg tmhee
summer months when the sound and light show
is being presented, th e ship will close at 8:00
pm. 5:00 pm from September 16 through May
15 and at 8:00 pm from May 16 through Sep-tember
15.
Authority G.S. 143-362: 143B-73.
.0203 ADMISSION PRICES
(a) The admission price for the Battleship U.S.S.
North Carolina is six dollars ($6.00) for persons age
12 and over, three dollars (S3. 00) for children age 6
through 11. one dollar and fifty cents (Si. 50) per
Authority G.S. 143B-73.
.0207 PARKING LOT
The use of the parking lot, picnic shelter, picnic grove
and grandstand is restricted to those interested in visiting
and viewing the battleship memorial. Its use for overnight
parking is prohibited. Additionally, use of th e parking lot
during such time as the outdoor drama.—"The Immortal
Showboat", is being performed is restricted to individuals
w-he hav e valid tick e t s for the pe rformanc e .
Authority G.S. 143-362: 143B-73.
TITLE 10 - DEPARTMENT OF HUMAN
RESOURCES
Notice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Child Day Care
Commission intends to amend rules cited as 10 NCAC 03
U
.0704 and .0710.
Proposed Effective Date: April 1, 1997
A Public Hearing will be conducted at 4:00 p.m. - 8:00
188 NORTH CAROLINA REGISTER May 15, 1996 11:4
PROPOSED RULES
p.m. on September 4, 1996 at the NC Child Day Care
Commission, Meeting Room, 319 Chapanoke Road,
Suite 120, Raleigh, NC 27603.
Reason for Proposed Action: To recognize the NC
Child Care Credential as an option for a preservice
requirementfor child day care teachers or administra-tors.
Comment Procedures: Comments may be presented
in writing any time before or at the public hearing or
orally at the hearing. Time limits for oral remarks
may be imposed by the Commission Chairman. Any
person may request copies of these Rules by calling
Jeanne Marlowe, Division of Child Development, 319
Chapanoke Road, Suite 120, Raleigh, NC 27603, (919)
662-4535.
Fiscal Note: These Rules do not affect the expendi-tures
or revenues of state or local government funds.
CHAPTER 3 - FACILITY SERVICES
SUBCHAPTER 3U - CHILD DAY CARE
STANDARDS
SECTION .0700 - HEALTH AND OTHER
STANDARDS FOR CENTER STAFF
.0704 PRESERVICE REQUIREMENTS
FOR ADMINISTRATORS
(a) The on-site administrator who has overall
responsibility for planning and administering the child
care program shall meet the following requirements:
(1) Be at least 21 years of age, and be literate;
and
(2) Have either a high school or general educa-tion
diploma; and
(3) Have two years of full-time verifiable child
day care or early childhood experience; or
an undergraduate, graduate, or associate
degree, with at least 12 semester hours in
child development, child psychology, early
childhood education or directly related field;
or a Child Development Associate Creden-tial;
or completion of a community or tech-nical
college curriculum program in the area
of child care or early childhood; or one year
of full-time verifiable child day care or early
childhood experience and have completed
the North Carolina Child Care Credential
course; and
(4) Have verification of having successfully
completed, or be currently enrolled in, 3
quarter hours, or 33 clock hours, of training
in the area of child care program administra-tion;
or, have one year experience perform-ing
administrative responsibilities; or, have one
year experience performing administrative re-sponsibilities
and have another full-time staff
person, who meets Subparagraphs (1) through
(3) of this Paragraph who is responsible for
planning and implementing the daily program at
the center to comply with Sections .0500 and
.0600 of this Subchapter.
(b) The administrator of a child day care program who
does not routinely work on site, or who is responsible for
more than one child day care arrangement, shall have
verification of having successfully completed, or be
currently enrolled in, 3 quarter hours, or 33 clock hours,
of training in child care program administration; or, have
one year experience performing administrative responsibili-ties
and have at least one full-time staff person on site at
each center who meets the requirements of (1) through (3)
of Paragraph (a) of this Rule.
(c) Any person who is at least 21 years old and literate
who was employed as an on-site administrator in a day
care program on or before September 1, 1986, shall be
exempt from the provisions of Paragraphs (a) and (b) of
this Rule.
Authority G.S. 110-91(8); 143B-168.3.
.0710 PRESERVICE REQUIREMENTS FOR
TEACHERS AND AIDES
(a) The teacher-caregiver with responsibility for plan-ning
and implementing the daily program for each group of
children shall be at least 18 years of age, literate, and have
at least one of the following:
(1) A high school or general education diploma and
one of the following:
(A) One year of verifiable experience working
in a child day care center; or
(B) Twenty additional hours of training within
the first six months of employment; or
(C) Successful completion of the Department
of Public Instruction's Child Care Services
Occupational Home Economics Program;
or
(D) A passing grade in at least the equivalent
of four semester hours in child develop-ment
at a regionally accredited college or
univoreity. university; or
(E) Completion of the North Carolina Child
Care Credential course.
(2) A Child Development Associate Credential.
(3) Graduation from a child care or early childhood
curriculum program at a community college or
technical college.
(4) An undergraduate or graduate degree with at
least the equivalent of four semester hours in
child development.
(5) Five years of verifiable experience working in
child day care.
11:4 NORTH CAROLINA REGISTER May IS, 1996 189
PROPOSED RULES
(b) An aide or person responsible to the
teacher-caregiver for assisting with planning and
implementing the daily program shall be at least 16
years old and literate.
Authority G.S. 110-91(8); 143B-168.3.
TITLE 15A - DEPARTMENT OF
ENVIRONMENT, HEALTH, AND
NATURAL RESOURCES
Notice is herebx given in accordance with G.S.
150B-21.2 that the Coastal Resources Commis-sion
intends to amend rule cited as 15A NCAC 7H
.0106. Subject Matter notice was published in the
Register , Volume 10, Issue 16B, page 1921.
Proposed Effective Date: October 1, 1996.
Reason for Proposed Action: Needfor consistent use
and understanding of the term in CRC rules. The term
"structure" is used numerous times in CRC rules but is
not defined in such a way as to apply consistently
throughout all Subchapters of Chapter 7H. It is
proposed to define building, roads, piers, mooring
pilings, breakwaters, etc. as structures.
Comment Procedures: All persons interested in this
matter are invited to send written comments to be
received no later than June 15, 1996. Please mail or
fax comments to Kris M. Horton; DEHNR; NC Divi-sion
of Coastal Management; PO Box 27687; Raleigh.
NC 27611-7687; (919) 733-1495.
Editor's Note: An agency may not adopt a rule that
differs substantially from the text of a proposed rule
published in the Register, unless the agency publishes
the te,xt of the proposed different rule and accepts
comments on the new text.
Fiscal Note: This Rule does not affect the expendi-tures
or revenues of state or local government funds.
Economic impact does not exceed $5 ,000,000.
CHAPTER 7 - COASTAL MANAGEMENT
SUBCHAPTER 7H - STATE GUIDELINES
FOR AREAS OF ENVIRONMENTAL CONCERN
SECTION .0100 - rNTRODUCTION AND
GENERAL COMMENTS
.0106 GENERAL DEFINITIONS
The following definitions apply whenever these
terms are used in this Subchapter: Chapter:
(1) "Normal High Water" is the ordinary extent
of high tide based on site conditions such as
presence and location of vegetation, which has
its distribution influenced by tidal action, and the
location of the apparent high tide line.
(2) "Normal Water Level" is the level of water
bodies with less than six inches of lunar tide
during periods of little or no wind. It can be
determined by the presence of such physical and
biological indicators as erosion escarpments,
trash lines, water lines, marsh grasses and
barnacles.
(3) Unless specifically limited, the term "structures"
includes, but is not limited to. buildings, bridges,
roads, piers, wharves and docks (supported on
piles), bulkheads, breakwaters, jetties, mooring
pilings and buovs, pile clusters (dolphins),
navigational aids and elevated boat ramps.
Authority G.S. 113A-102; U3A-107.
******************
Notice is hereby given in accordance with G.S.
150B-21.2 that the Coastal Resources Commission
intends to amend rule cited as 15A NCAC 7J .0102.
Proposed Effective Date: April 1, 1997.
A Public Hearing will be conducted at 4:00 pm on July
25, 1996 at the Crystal Coast Civic Center, 3505 Arendell
Street, Morehead City, NC 28557.
Reason for Proposed Action: The term "structure" is
used numerous times in CRC rules but is not defined in
such a way as to apply consistently throughout all Subchap-ters
of Chapter 7. This definition of structure is being
deletedfrom 15A NCAC 7J .0102 and moved to 15A NCAC
7H .0106 to provide consistency in Chapter 7.
Comment Procedures: All persons interested in this
matter are invited to attend the public hearing. Hie
Coastal Resources Commission will receive mailed written
comments postmarked no later than July 25, 1996. Any
person desiring to present lengthy comments is requested to
submit a written statement for inclusion in the record of
proceedings at the public hearing. Additional information
concerning the hearing or the proposals may be obtained
by contacting Kris M. Horton, Division of Coastal Manage-ment,
PO Box 27687, Raleigh, NC 27611-7687, (919) 733-
2293.
Fiscal Note: This Rule does not affect the expenditures or
revenues of state or local government funds. Economic
impact does not exceed $5,000,000.
CHAPTER 7 - COASTAL MANAGEMENT
190 NORTH CAROLINA REGISTER May 15, 1996 11:4\
PROPOSED RULES
SUBCHAPTER 7J - PROCEDURES FOR
HANDLING MAJOR DEVELOPMENT
PERMITS: VARIANCE REQUESTS: APPEALS
FROM MINOR DEVELOPMENT PERMIT
DECISIONS: AND DECLARATORY RULINGS
SECTION .0100 - DEFINITIONS
.0102 GENERAL DEFINITIONS
The following definitions apply whenever these
words are used in this Subchapter:
(1) "Areas of Environmental Concern" (AECs)
means geographic areas within the coastal
area which the Coastal Resources Commis-sion
chooses to designate for special envi-ronmental
and land use regulations. The
types of areas which may be designated as
AECs are described in G.S. 113A-113.
Areas which have already been designated
are defined in 15A NCAC 71, "State Guide-lines
for Areas of Environmental Concern."
(2) "Department" (DEHNR) means the North
Carolina Department of Environment,
Health, and Natural Resources.
(3) "Excavation Project" means any moving,
digging, or exposing of bottom materials,
marshland substrate or root or rhizome
matter in the estuarine waters, tidelands,
marshlands and state-owned lakes, regard-less
of the equipment or method used.
(4) "Filling Project" means the placing of any
materials in estuarine waters, tidelands,
marshlands and state-owned lakes so as to
raise the elevation of the area upon which
the material is placed. Structure placement
does not constitute a filling or excavation
project. The placement of shell material
specifically for the purpose of oyster culture
also shall not be considered a filling project.
(5) "Local Management Program" means the
local implementation and enforcement pro-gram
of a coastal city or county that has
undertaken to administer a permit program
for minor development in areas of environ-mental
concern located within such city or
county.
(6) "Local Permit Officer" refers to the locally
designated official who will administer and
enforce the minor development permit pro-gram
in areas of environmental concern and
all parts of the land use plan which the local
government may wish to enforce over the
entire planning area.
(7) "Division" means the Division of Coastal
Management.
(8) "Permit" refers to CAMA major develop-ment
permits, CAMA minor development
permits and dredge and fill permits unless the
context clearly indicates a contrary interpreta-tion.
(9) "Secretary" refers to the Secretary of Environ-ment,
Health, and Natural Resources.
(40) "Structures"—inoludeo.—but io not limited to,
buildings; bridges, piers, wharveo and dooko
(supported on piles): timber breakwaters; moor
ing pilings; pile clusters- (dolphins); navigational
aido; not stakes; or oonorote steel, or wood boat
ramps more than 20 feet long and 10 feet wide .
Authority G.S. 113-229; 113A-116; 113A-117; 113A-118.
******************
Notice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Wildlife Resources
Commission intends to repeal rule cited as 15A NCAC 101
.0001.
Proposed Effective Date: March 2, 1997.
A Public Hearing will be conducted at 10:00 am on June
5, 1996 at the Archdale Building, Room 332, 512 N.
Salisbury Street, Raleigh, NC 27604.
Reason for Proposed Action: To conform to amendments
to G.S. 113-333 pursuant to House Bill 832 Chapter 392,
1995 Session Laws.
Comment Procedures: Interested persons may present
their views either orally or in writing at the hearing. In
addition, the record of hearing will be open for receipt of
written comments from May 15, 1996 through June 14,
1996. Such written comments must be delivered or mailed
to the North Carolina Wildlife Resources Commission, 512
North Salisbury Street, Raleigh, NC 27604-1188.
Fiscal Note: This Rule does not affect the expenditures or
revenues of state or local government funds.
.0001 DEFINITIONS AND PROCEDURES
fa)
—
For th e purposes of this Subchapter, the following
definitions shall apply:
(4) "Best available scientific evidence"—is the
existing biological, chemical, and physical
data on the distribution, status, abundanoe,
and population dynamios of a wild animal
species and on the sufficiency or insufficiency
of the biological and physical features of a
oritioal habitat that have boon collected and
analyzed by competent biologists using objec-tive,
scientific methods .
(3) "Biological and physical features" are the
known parameters and characteristics of a
oritioal habitat nooossary to sustain essential
NORTH CAROLINA REGISTER May 15, 1996 191
PROPOSED RULES
m-lifc
processes of a wild animal species.
"Conservation—of a—protect ed—animal
species" io defined by G,S. 113 331(1).
"Conservation plan" shall be a written
plan developed by the Wildlife Resources
Commission—using—its
—
resources—and
expertise in th e biological and ecological
sciences with input from other agencies
that documents problems in the biological
and physical feature s of a critical habitat
and id entifies possibl e remedi es.
(-A-) The
con servation—p+an
shall
contain the best available scion
tifie evidenc e that forms th e
basis for designation of th e
critical habitat and may contain
recommended—actions—te—be
taken for speci al conservation.
protection, and management of
the critical habitat.
(-B-) The
—
conservation—p+an
—
may
contain more than on e critical
habitat if the threats to th e hab
itats and the endangered and
threatened wild animal species
occupying th em are s imilar.
fG) The conservation plan shall be
available for public review and
comment.
"Critical—habitat"—means—anv
—
habitat
e ss e ntial to th e conservation of a pro '
tected animal species listed as endangered
or threatened in Rule .0003 or .000 4 of
this Subchapte r.
(-A-) Critical—habitat shall—include
areas within the occupied or
potential geographical range of
a prot ected animal species or
other critical areas that contain
or impact the biological and
physical—features es sential to
th e conservation of a protected
animal speci e s and for which
special—con servation,—protec
tion. and management actions
may be required.
(B) Critical habitat shaH net
include the entire occupied or
potential geographical range of
a protect ed animal speci es or
all areas that impact upon a
protected animal species unless
the—best
—
available—
s
cientific
evide nc e indicat es that special
conse rvation.—protection.—and
management of the area or the
entire range is essential to the
conservation of a protected animal
speci es.
f&) Critical habitats designations shall
bo listed in this Subchapter and
shall include an accurate description
of the habitats and the ir boundaries,
the endangered and threat ened wild
animal species occupying the habi
tat s , and the reason and basis for
designation.
(&) "Life processes" are those biological funo
tions of a wild animal species essential to the
health and survival of individual organisms
and perpetuation of a wild animal species.
ffi "Protect ed—animal"—ts
—
de fined—m
—
G.S.
&~
113 331(5).
"Special conservation, protection, and man
agement" are measures that may be taken and
restrictions that may be imposed n ec essary to
preserve or restore the essential biologieal
and physical features of a critical habitat.
&) "Speci e s" means the taxonomie grouping of
wildlife ,—th e sexually—mature members of
which interbreed and reproduce their own
kind
fW- 'Wild imal" de fin ed in G.S.
113 331(10).
fb-)
—
For the purposes of this Subchapter, the following
procedures apply for the designation of critical habitat.
m- Th e Wildlife Resources Commission shal
unde rtak e designation of critical habitat with
the ads -(
(3)
Jvice and upon the recommendation o
the Nongamo Wildlife Advisory Committee
and—
s
hall—
b
ase any—d ecision—to de signate
critical habitat upon th e best availabl e sci en
t i fic evidence.
Lpon receiving the recommendation from the
Nongame Wildlife Advi sory Committee that
d e signation of critical habitat is essential to
the conservation of a protected animal species
li sted as endangered or threatened pursuant to
Rul e .0003 or .0001 of this Subchapter, and
upon finding suffici e nt ev i dence in th e recom
mendation to warrant further consideration of
designation, the Wildlife Resources Commis
s ion s hall—publish in th e North Carolina
Registe r notice of public hearing and intent to
designate the area as critical habitat.
&- #+he
m-
At the time of publ i cation of the notice ot
public—hearing—en
—
designation—of critical
habitat, th e be st availabl e sci entific evidence
upon which the proposed designation i s based
shall be available for public review and shall
be provid ed to oth e r agenci es.
The Wildlife Resourc e s Commission shall
base its decision to designate or not des ignate
a critical habitat solely upon the best availab l e
192 NORTH CAROLINA REGISTER May IS, 1996 11:4
PROPOSED RULES
m-
&-
scientific ovidonco and information in tho
record of tho publio hearing proceedings
pertinent to tho determination of whether
or not tho critical habitat is essential for
tho conservation of a protected animal
spooioo.—Considerations related to the
appropriateness—or implementation—el
special—conservation,—protection,—and
management actions which may bo roc
ommendod in any subsequently devel
opod conservation plan shall not bear
upon tho decision to designate or not
designate a critical habitat-
Following the designation of a oritioal
habitat, tho Wildlife Resources Commis
sion shall invito representatives of intor
ostod governmental agencies with juris
diotion over measures and restrictions
that oould e ffeot special conservation,
protection, and management of tho criti
cal habitat to participate in development
of a draft conservation plan for the listed
oritioal—habitat. Eaoh—governmental
agency involved in development tho draft
conservation—plan
—
shall—consider—the
range of impaots of proposed speoial
conservation,—protection, and manage
mont measures in tho plan that come
under its jurisdiction and that affect tho
publio interest and shall address these
impaots in th e plan.
Upon completion of tho draft consorva
tion plan, tho Wildlife Resources Com
mission shall publish in the North Caro
Una Register notioe of the availability of
tho draft conservation plan for public
review and notice of public hearing to
reoeive publio oomment on the appropri
at eness and various impaots of the oon
servation, protection, and management
provisions of tho draft conservation plan.
f?) The Wildlife Resources Commission and
other governmental agenoies contributing
te—the
—
management—and
—
conservation
strategy proposed for any designated
oritioal habitat shall provide at the time
of presentation of tho conservation plan
an opportunity for tho public and any
interested party to present pertinent infor
mation and oomments about eoonomio,
sooial, eoologioal or other impaots that
may result from implementation of spo
cial conservation, protection, and man
agomont measures rooommended in the
conservation plan.
(&) Each governmental agoncy affected by
special—conservation,—protection,—and
management measures contained in tho con
se rvation plan for a oritioal habitat shall bo
invited to participate in the publio hearing
process, to considor tho bost available scion
tifio ovidonco and tho record of tho public
hearing proceedings, and to take appropriate
aotiono under the agenoy's jurisdictional and
procedural authorities.
Authority G.S. 113-132; 113-134; 113-331; 113-333;
113-334; 113-336; 143-239.
NORTH CAROLINA REGISTER May 15, 1996 193
TEMPORARY RULES
The Codifier of Rules has entered the following temporary rule(s) Ln the North Carolina Administrative Code.
Pursuant to G.S. 150B-21. 1(e), publication of a temporary rule in the North Carolina Register serves as a notice of
rule-making proceedings unless this notice has been previously published by the agency.
TITLE 1 - DEPARTMENT OF
ADMINISTRATION
Rule-making Agency: State Building Commission
Rule Citation: 1 NCAC 30G .0101 - .0705
Effective Date: July 1, 1996
Findings Reviewed by the Codifier of Rules: Approved
Authority for the rule-making: G.S. 143-135.26(9)
Reason for Proposed Action: These Rules are proposed
to establish procedures and criteria by which the State
Building Commission cart evaluate requests to use alterna-tive
contracting methods in public construction, as autho-rized
by the 1995 General Assembly.
Comment Procedures: All persons interested in this
matter are encouraged to submit written comments to: R.
Glen Peterson, Department of Administration, 116 West
Jones Street, Raleigh, NC 27603-8003. Comments will be
accepted through July 15, 1996.
CHAPTER 30 - STATE CONSTRUCTION OFFICE
SUBCHAPTER 30G - STATE BUILDING
COMMISSION PROCEDURES AND CRITERIA
FOR AUTHORIZATION TO USE AN ALTERNATIVE
CONTRACTING METHOD
SECTION .0100 - GENERAL PROVISIONS
.0101 AUTHORITY
The State Building Commission, hereinafter referred to
as SBC, is a statutory body, empowered by law to perform
a multiplicity of duties with regard to the State's capital
facilities development and management program. In the
specific area of State capital improvement project require-ments
for building contracts, the SBC is empowered by
G.S. 143-135.26 to adopt procedures which allows a State
agency or institution, a local governmental unit, or any
other entity subject to the provisions of G.S. 143-129 to
use a method of contracting not authorized under G.S. 143-
128. The use of any other alternative method shall be
approved in advance by the SBC for any single project.
History Note: Authority G.S. 143-135.26;
Temporary Adoption Eff. July 1 , 1996.
.0102 POLICY
To assure that the public trust is carefully exercised, the
North Carolina General Assembly has enacted a number of
special procedures for the letting and administration of
public construction contracts. They also help to assure that
public owners receive good value in their expenditure of
the public funds and that they do not pay excessive prices
for construction. Therefore, it is the policy of the SBC
that the public's interest is typically best served by the
letting of public construction contracts pursuant to these
special statutory procedures, particularly the provisions of
G.S. 143-128. Nevertheless, the SBC recognizes that
extraordinary circumstances do arise which justify an
exemption from the methods of contracting authorized
under G.S. 143-128. The categories of exemptions and
other criteria set forth herein are designed to provide a fair
and uniform means by which the SBC can determine that
the requisite justifications to obtain an exemption have been
adequately demonstrated.
History Note: Authority G.S. 143-135.26;
Temporary Adoption Eff. July 1 , 1996.
.0103 DEFINITIONS
For the purposes of these Procedures and Criteria, the
following definitions shall apply:
( 1) "Alternative contracting method" includes by
way of example, but not limited to:
(a) the single-prime contracting system, not
otherwise authorized under G.S. 143-128,
(b) the design-build delivery system, or
(c) the construction management delivery
system.
"Chairman" means the Chairman of the State
Building Commission.
"Construction management delivery system"
means the alternative contracting method where
the public owner contracts for a fee with a single
person, but not the project general contractor,
who administers contracts with separate contrac-tors
for the construction of the project and who
is responsible as agent to the public owner for
the coordination and management of the project,
but where the public owner remains liable to the
separate contractors.
"Design-build delivery system" means that the
public owner contracts for a fee with a single
person for the design, management and construc-tion
of a project.
"Director" means the Director of the State
Construction Office.
(3}
(4)
161 'Exemption" means the grant of authorization by
the SBC for the use of a method of contracting
not otherwise authorized under G.S. 143-128.
(7) "Person" means a person, firm or corporation.
194 NORTH CAROLINA REGISTER May 15, 1996 11:4
TEMPORARY RULES
(8) "Project" means the building or facility for
which an exemption is requested by the public
owner, and upon which the work will be per-formed.
(9) "Public owner" means a state agency or institu-tion
,
a local government unit, or any other entity
subject to the provisions of G.S. 143-129.
(10) "SBC" means the State Building Commission.
(11) "Work" means the erection, repair, construction,
renovation or alteration to be performed upon a
building or facility.
History Note: Authority G.S. 143-135.26;
Temporary Adoption Eff. July 1 , 1996.
.0104 GENERAL PROCEDURES
(a) Application Form z The SBC shall establish a form
of application, along with a copy of the rules for applica-tion
approved by the SBC, to be used by public owners
requesting an exemption, which shall upon request be
provided to public owners. A completed application shall
contain all of the information necessary to enable the SBC
to determine the appropriateness and merits of approving
an exemption.
(b) Rules for Application : The SBC shall establish rules
for application to be used by public owners requesting an
exemption, which shall upon request be provided to public
owners.
(c) Review of Application:
(1) The public owner shall submit the application to
the State Construction Office, Attention: Direc-tor,
Department of Administration, New Educa-tion
Building, Suite 450, 301 North Wilmington
Street, Raleigh, North Carolina 27601-2827.
The Director shall review the application upon
its receipt. If the Director determines that the
application is not complete, he shall return the
application to the public owner along with a
written notice of the reasons for the return.
Despite the return of an application, a public
owner may request in writing to the Director that
the SBC consider the application as originally
submitted, and the notice of return to the public
owner shall so state this option. An application
shall be considered abandoned if it is returned
pursuant to this Section, and no further action is
taken by the public owner to satisfy the reasons
for its return.
(2) The SBC shall generally meet once per month to
review applications and to conduct its other
business. Completed applications shall be con-sidered
within 60 days of receipt by the Director
of the completed application. Once scheduled
for consideration by the SBC, the public owner
shall be given notice of the date, time and loca-tion
of the SBC meeting at which the application
shall be considered.
(3) The SBC shall only accept written applications.
After due consideration of these applications, the
SBC shall take one of the following actions:
(A) Delay consideration of the application:
(B) Deny the application: or
(C) Approve the application.
Within five days of the SBC's action upon the
application, notice of the same shall be sent to
the public owner, and to the Director. Upon a
delay of consideration pursuant to Paragraph (a)
of this Rule, the SBC shall immediately request
from the public owner or other person further
information required in order to make a determi-nation,
or provide the public owner with notice
of other good cause existing for the delay.
(d) Approval of an Application - Approval of an applica-tion
authorizes the public owner to utilize only the alterna-tive
contracting method as proposed by the public owner
and no other method of contracting. Approval of an
application shall be effective for a period to be determined
by the SBC but not exceeding J2 months, unless that
effective time period is extended by the SBC upon good
cause shown by the public owner. The extension of an
effective time period shall be for no more than 12 months
and shall run from the last day of the prior effective time
period. The effective time period shall run from the date
the SBC approves the application.
(e) Voting ; The authorization for an alternative con-tracting
method shall be approved by two-thirds of the
members of the SBC present and voting. A member of the
SBC is not qualified to vote upon any matter or influence
any other member's vote upon any matter in which he has
a conflict of interest. A conflict of interest, as related to
members of the SBC, is defined in G.S. 143-135.28.
(fj Public Records - The Director shall maintain a list of
applications which states the name of the public owner, the
name of the project, the project amount, a brief description
of the category for which the exemption is sought, and a
record of the SBC's action. Applications, and a record of
the SBC's action upon those applications, shall be available
for public inspection.
History Note: Authority G.S. 143-135.26;
Temporary Adoption Eff. July 1 , 1996.
.0105 CRITERIA FOR CONSIDERATION
(a) General Considerations ; Applications shall be
subject to the following general considerations which the
SBC shall utilize in reviewing all applications:
(1) Whether the public owner has adequately justi-fied
that the requested exemption is applicable to
the project.
(2) Whether under the circumstances presented the
project can be reasonably completed under the
methods authorized under G.S. 143-128, and if
not, whether the public owner has adequately
demonstrated that the proposed alternative con-
11:4 NORTH CAROLINA REGISTER May 15, 1996 195
TEMPORARY RULES
trading method |s necessary.
(3) Whether the exemption sought is appropriate and
in the public's interest.
(4) Whether the public owner has been responsible
in the pre-planning stages of the project.
(b) Criteria for Exemptions ; The following criteria
describe circumstances where the SBC recognizes that a
project may not be able to be reasonably completed under
the methods authorized by G.S. 143-128, and where the
use of an alternative contracting system, not otherwise
authorized by G.S. 143-128, may be appropriate and in the
public's interest:
(1
)
Special Technology or Equipment - The project
involves the erection or construction of special or
unique technology or equipment whose vendor
requires that its services be purchased in con-junction
with the technology or equipment; or
the vendor guarantees the technology or equip-ment
only if its services are purchased in con-junction
with the technology or equipment.
(2) Unusual Complexity : The project involves one
or more of the following conditions:
(A) very specialized or complex type of con-struction
involving unconventional con-struction
techniques or materials, or un-usual
working conditions;
(B) major renovations or an addition to an
existing facility requiring continuous
coordination of occupied programs or
operations necessary for the protection of
public health or safety; or
(C) extensive repairs, renovations or an addi-tion
to a major building or facility listed
either in the North Carolina or Federal
Register of Historic Properties.
(3) Accelerated Schedule ; A fast track schedule is
required due to actual or impending judiciai
intervention by means of a State or Federal court
order, or to address actual or impending regula-tory
mandates or citation for noncompliance.
History Note: Authority G.S. 143-135.26;
Temporary Adoption Eff. July 1 , 1996.
TITLE 10 - DEPARTMENT OF HUMAN
RESOURCES
Rule-making Agency: DHR-Division of Medical Assis-tance
Rule Citation: 10 NCAC 50D .0101 - .0103. .0201,
.0301 - .0302. .0401 - .0402. .0501 - .0503
Effective Date: Temporary Adoption Eff. May 6, 1996 to
expire on July 1, 1996, or the last day of the 1996 session
of the General Assembly, whichever is later.
Findings Reviewed by the Codifier of Rules: Approved
Authority for the rule-making:
U.S.C. 1396p.
G.S. 108A-70.5; 42
Reason for Proposed Action: These rules are necessary
to implement Medicaid estate recovery. OBRA 1993
mandated estate recovery and enabling state legislation to
effect this mandate was needed. G.S. 108A-70.5 was
passed in July 1994 and authorizes estate recovery. These
rules were published in NC Register 10:15. These rules
have already undergone public comment and revision. At
the February 15, 1996 Rules Review Commission meeting,
the Commission voted to return these rules for failure to
prepare a fiscal note in compliance with G.S. 150B-
21.4(b). These rules have been revised as a result of the
public hearing process. Revisions are shown with strike
through and underline.
Comment Procedures: Written comments concerning
these rule-making actions must be submitted by July 15,
1996 to Portia Rochelle, APA Coordinator, Division of
Medical Assistance, 1985 Umstead Drive, Raleigh, NC
27603.
CHAPTER 50 - MEDICAL ASSISTANCE
SUBCHAPTER 50D - ESTATE RECOVERY
SECTION .0100 - RECIPIENTS
SUBJECT TO ESTATE RECOVERY
.0101 NOTICE OF ESTATE RECOVERY
(a) An individual who applies or reapplies) on or after
October 1.—1991 under for Medicaid disabled or aged
categories coverage for cost of care shall be given a
written notice at the time of application that a claim may
be filed against their estate, if one exists, to recover
Medicaid payments made on his behalf.
fb) Notice shall be on a form prescribed by the Division
of Medical Assistance and shall explain:
The types of Medicaid payments subject to estate
recovery; and
That recovery will not be claimed if the individ-ual
is survived by a legal spouse, child(ren)
under age 21 or blind or disabled child(ren) of
any age who became blind or disabled before age
21 and still live on the property of the individ
ua+r individual;
(3) That estate recovery is limited to recipients age
55 and over who receive certain Medicaid ser-vices
or to recipients who are permanently
institutionalized; and
(4) That recovery may be waived in the case of
undue hardship.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
(1)
(2)
196 NORTH CAROLINA REGISTER May 15, 1996 11:4
TEMPORARY RULES
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1
,
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
.0102 PERMANENTLY INSTITUTIONALIZED
Recovery shall apply to the estates of individuals under
age 55 who seek Medicaid coverage for costs of care in a
medical institution and who cannot reasonably be expected
to be discharged to return home.
(1) For purposes of estate recovery, medical institu-tion
means licensed nursing facilities, intermedi-ate
care for the mentally retarded facilities,
nursing facility level of care in hospitals, or
psychiatric inpatient care in a general hospital, ef
psychiatric hospital hospital, or mental institu-tion.
(2) A determination that an individual cannot reason-ably
be expected to be discharged to return home
is made when the individual seeks placement in
or has been admitted to a medical institution
using the following evidence:
(a) Admission forms for level of care, physi-cian
written statement of discharge plans,
or plans of care which indicate care needs
are not of temporary permanent or of
indefinite duration, or
(b) Individual continues to be a resident of a
medical institution at the end of a tempo-rary
stay predicted by his physician at the
time of admission to be no longer than six
months in duration.
(3) Notice of the determination that the individual is
residing in a medical institution on a permanent
or indefinite basis shall be given to the individ-ual,
or to his parent/guardian/responsible person
if the individual is incompetent, within three
work days after the determination. The notice
shall explain the right to request a reconsidera-tion
review, and the time limits and procedures
for doing so.
(4) The individual or his parent/guardian/responsible
person may request a reconsideration review of
the determination under Section .0200 of this
Subchapter.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1
,
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
.0103 AGE 55 AND OVER
(a) Recovery shall apply to the estates of individuals
who on or after reaching age 55 seek receive Medicaid
coverage for nursing facility level of care in a medical
inatitution or under a home and community based alterna-tive
program for individuals who would otherwise qualify
for ea to expire on July 1, 1996, or the last day of the
1996 session of the General Assembly, whichever is later.
to in a medioal inotitution. nursing facility level of care.
(b) Written notice that the state may file a claim against
their estate to recover the payments made by the Medicaid
Program on their behalf shall be given to individuals at the
time of approval of eligibility for nursing facility level of
care in a medioal inotitution or approval for home and
community based alternatives services.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1
,
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
SECTION .0200 - RECONSIDERATION REVDZW
.0201 RECONSIDERATION REVD2W
(a) The recipient or his parent/guardian/responsible
person acting on behalf of the recipient may request
reconsideration of the determination that the individual
cannot reasonably be expected to be discharged to return
home based on relevant evidence stated in Rule .0101 of
this Subchapter.
(b) A reconsideration review shall be requested in
writing to the Division of Medical Assistance estate
recovery administrator within 30 calendar days of the
determination and written notice provided by the county
department of social services.
(c) Within 30 calendar days of a written request for
reconsideration of the determination of permanent institu-tionalization,
the estate recovery administrator shall
establish a reconsideration date and conduct a review of:
(1) All evidence considered by the county depart-ment
of social services in making a determina-tion
of permanent institutionalization, and
(2) Information provided in writing or by telephone
conference with the recipient or an individual
acting on behalf of the recipient.
(d) The review shall be conducted in the Division of
Medical Assistance offices and may include a telephone
conference with the recipient or an individual acting on
behalf of the recipient if oral testimony is requested.
(e) A decision shall be made and provided in writing to
the recipient or an individual acting on behalf of the
recipient within 15 calendar days of the date of the recon-sideration
review.
(f) If the recipient disagrees with the decision of the
reconsideration review, he may appeal to the Office of
Administrative Hearings (OAH) within 30 60 calendar days
of receipt of the reconsideration review decision. If no
appeal to OAH is filed, the reconsideration review decision
is final.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
11:4 NORTH CAROLINA REGISTER May 15, 1996 197
TEMPORARY RULES
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1
,
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
SECTION .0300 - MEDICAID PAYMENTS
SUBJECT TO RECOVERY
.0301 PERMANENTLY rNSTITUTIONALIZED
(a) Recovery shall be claimed for all Medicaid pay-ments,
including cost sharing charges for Medicare
services and Medicare premiums, made on behalf of
individuals for the period of time the individual received
care in a medical institution, including the period of time
prior to the date the recipient is determined permanently
institutionalized whether or not such periods were consecu-tive.
The amount of recovery « shall be limited to the
amount of Medicaid payments for services and benefits
described herein.
(b) No recovery wiH shall be claimed for any period of
time the recipient was discharged from a medical institution
and lived in the community for a period of 30 or more
consecutive days.
(c) No recovery wiH shall be claimed if the recipient is
survived by one or more of the relatives listed in Section
.0100 of this Subchapter.
(d) No recovery wiH shall be claimed if the Division of
Medical Assistance determines under provisions of Section
.0500 of this Subchapter that it is not cost effective or if
recovery would create undue hardship to a survivor.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
I396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1
,
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
.0302 AGE 55 and OVER
(a) Recovery shall be claimed for Medicaid payments
for the following services and benefits:
(1) Nursing facility level of care;
(2) Home and community based alternatives ser-vices;
(3) Hospital inpatient and outpatient Related hospital
care received during approved care under either
Subparagraph (1) or (2) of this Paragraph.
(4) Prescription drugs received during approved care
under either Subparagraph (1) or (2) of this
Paragraph; and
(5) Medicare premiums paid during the time of
approved care under either Subparagraph (1) or
(2) of this Paragraph.
(b) The amount of recovery » shall be limited to the
amount of Medicaid payments and benefits described in
Paragraph (a)(l)-(5) of this Rule.
(c) No recovery wiH shall be claimed if the recipient is
survived by one or more relatives listed in Section .0100
of this Subchapter.
(d) No recovery will shall be claimed if the Division of
Medical Assistance determines under provisions of Section
.0500 of this Subchapter that it is not cost effective or if
recovery would create undue hardship to a survivor.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1
,
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
SECTION .0400 - FILING AND COLLECTION OF
CLAIMS AGAINST ESTATE
.0401 FILING CLAIM AGAINST ESTATE
(a) Within 60 days after the date of a recipient's death,
the Division of Medical Assistance or its fiscal agent shall
produce a claim document summarizing all Medicaid
payments subject to recovery as stated in Rules .0301 and
.0302 of this Subchapter.
(b) The claim shall be mailed to the county department
of social services from which the individual received
Medicaid.
(c) Following a determination that the recipient is not
survived by any of the relatives listed in Section .0100 of
this Subchapter, the county department of social services
shall file the claim by certified mail with the individual
who has been named to administer the estate and shall send
a copy to the clerk of court for his records. At the time
the claim is filed the administrator shall be notified that
recovery will be waived if the assets in the estate are below
five thousand dollars ($5,000), and of the procedures for
requesting a determination of undue hardship.
(d) The claim shall be filed regardless of whether an
appeal or determination of permanent institutionalization
status has been decided.
(e) (d) If an administrator of the decedent's estate has
not been appointed at the time the claim is received in the
county, within 30 calendar days the county shall request
the name of the administrator from the clerk of court and
shall file the claim directly with the clerk of court if no
appointment has been made.
(fj fe) At any time that the county department of social
services determines that the decedent is survived by any of
the relatives listed in Section .0100 of this Chapter or that
the decedent does not have an estate, it shall notify the
Division of Medical Assistance to cease recovery efforts.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1,
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
.0402 COLLECTION OF CLAIMS
(a) Estate for purposes of recovery of Medicaid pay-
198 NORTH CAROLINA REGISTER May 15, 1996 11:4
TEMPORARY RULES
merits is defined under G.S. 28A-15-1.
(p) Unless the Division of Medical Assistance waives or
reduces its claim, recovery under rules in Section .0500 of
this Subchapter, recovery shall be claimed in fuU for the
amount of the Medicaid claim to the extent that assets in
the estate are sufficient to meet the state's claim as a fifth
class creditor.
(c) All recoveries for Medicaid claims shall be remitted
to the Division of Medical Assistance by the administrator
of the decedent's estate, any individual or entity designated
by the clerk of court or by the clerk of court.
(d) Amounts recovered shall be shared by the federal
,
state and county governments in proportion to the financial
share of program costs borne by each at the time recovery
is received.
poverty level and assets in which the survivor or
his spouse have an interest are valued below
twelve thousand dollars ($12,000).
(c) Undue hardship dees shall not include loss of a pre-existing
standard of living nor the establishment of a source
of maintenance that did not exist prior to the decedent's
death.
(d) A claim of undue hardship to a survivor shall be
made in writing to the Division of Medical Assistance
estate recovery administrator within 90 30 days after the
surviving heir claiming undue hardship has been notified of
the Medicaid claim, claim has been filed with the admini s
trotor or clerk of court. The claim of hardship must shall
describe the financial circumstances of the heir and the
basis for his dependence on assets in the decedent's estate.
History Note: Authority- G.S. 108A-70.5; 42 U.S.C.
1396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1
.
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396P. ;
Temporary Adoption Eff. May 6, 1996 to expire on July I
,
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
SECTION .0500 - WAIVER OF RECOVERY
.0501 RECOVERY NOT COST EFFECTIVE
Recovery shall be deemed to not be cost effective and
shall be waived when:
(1) The amount of Medicaid payments for services
and benefits subject to recovery is less than three
thousand dollars ($3,000). or
(2) The assets in the estate are below five thousand
dollars ($5,000).
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
1396p. :
Temporary Adoption Eff. May 6, 1996 to expire on July 1
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
.0502 UNDUE HARDSHIP
(a) Recovery w shall be waived if enforcement of the
claim will cause undue or substantial hardship to the
surviving heirs of the decedent.
(b) Undue or substantial hardship is shall be deemed to
exist when:
(1) Real or personal property included in the estate
is the sole source of income for a survivor and
the net income derived is below 75 percent of
the federal poverty level for the dependents of
the survivor(s) claiming hardship, or
(2) Recovery would result in forced sale of the
residence of a survivor who lived in the resi-dence
for at least 12 months immediately prior to
and on the date of the decedent's death and who
would be unable to obtain an alternate residence
because the net income available to the survivor
and his spouse is below 75 percent of the federal
.0503 DETERMINATION OF UNDUE HARDSHIP
(a) The estate recover)' administrator shall evaluate each
claim of hardship within 60 calendar days of the request to
make a determination to waive recovery of the claim in
part or in full. In making this determination, the adminis-trator
may request documentation to support the survivor's
claim of hardship including prior year's income tax
returns, bank statements, wage and earnings files, real and
personal property records, utility records, tax records,
medical bills, or other documents offered by the survivor
to support his claim.
(b) If documentation necessary to evaluate the claim of
hardship is not provided or the survivor requests additional
time to obtain the documentation, the administrator may
extend the review for an additional 30 days.
(c) The claim of hardship shall be denied if the neces-sary
documentation is not provided within the time frames
stated in Paragraphs (a) and (b) of this Rule.
(d) The administrator shall notify in writing the survivor
claiming hardship, the administrator and the clerk of court
of his decision within 10 calendar days after completing the
review of the request and documentation supporting the
claim of hardship. The notice shall explain the right to
appeal to the Office of Administrative Hearings (OAH) and
the time limit and procedure for doing so.
(e) If the survivor disagrees with the decision, he may
appeal to the Office of Administrative Hearings (OAH)
within 30 60 calendar days of receipt of the decision. If
no appeal to OAH is filed, the decision is shall be final.
History Note: Authority G.S. 108A-70.5; 42 U.S.C.
I396p.;
Temporary Adoption Eff. May 6, 1996 to expire on July 1
.
1996, or the last day of the 1996 session of the General
Assembly, whichever is later.
11:4 NORTH CAROLINA REGISTER May 15, 1996 199
TEMPORARY RULES
TITLE 21 - OCCUPATIONAL LICENSING
BOARDS
CHAPTER 69 - BOARD FOR LICENSING
OF SOIL SCIENTISTS
Rule-making Agency: North Carolina Board for Licens-ing
of Soil Scientists
Rule Citation: 21 NCAC 69 .0101 - .0104, .0201 - .0202,
.0301 - .0308, .0401 - .0402, .0501
Effective Date: May 15, 1996
Findings Reviewed by the Codifier of Rules: Approved
Authority for the rule-making: G.S. 89F
Reason for Proposed Action: Passage of G.S. 89F in
Julx. 1995 established licensing of soil scientists. The
licensing board created by this statute requires rules for its
function especially with respect to allowing licensing
without examination prior to November, 1996. Notice of
rule-making proceedings was published in the Register on
January 2, 1996.
Comment Procedures: All persons interested in this
matter are encouraged to submit written comments or
questions to H.J. Kleiss, NC Board for Licensing of Soil
Scientists, PO Box 5316, Raleigh, NC 27650-5316.
Comments will be accepted through June 14, 1996.
Instructions on How to Demand a Public Hearing:
Contact the NC Board for Licensing of Soil Scientists, PO
Box 5316, Raleigh, NC 27650-5316. A request for a
hearing must be received by the Board within 15 days from
the publication of this notice.
SECTION .0100 - STATUTORY AND
ADMINISTRATIVE PROVISIONS
.0101 AUTHORrrY: NAME AND LOCATION OF
BOARD
The "North Carolina Soil Scientist Licensing Act". G.S.
89F. establishes and authorizes the "North Carolina Board
for Licensing of Soi Scientists"
"Board". Unless otherwise directed a
hereafter called the
communications
preside at all meetings, appoint committees, sign all
certificates issued and perform all duties pertaining to his
office.
(b) Vice-Chairmaji. The Vice-Chairman. in the absence
of the Chairman, shall perform all of the duties of the
Chairman.
(c) Secretary-Treasurer:
(1) The Secretary-Treasurer, with the assistance of
other officers or employees that may be ap-proved
by the Board, shall conduct and care for
all correspondence of the Board, keep minutes of
all meetings, and keep all books and records.
He shall have charge, care and custody of the
official documents by order of the Board. He
shall proyide notice to each member of the Board
of the time and place of all meetings of the
Board.
(2) The Secretary-Treasurer, with the assistance of
other officers or employees that may be ap-proy&
d by the Board, shall receive all monies
from applicants for annual renewal or other fees
and deposit them in an authorized depositors' of
the Board.
(3) The Secretary-Treasurer shall mail a copy of
G.S. 89F and the rules of this Chapter to each
applicant for a license.
History Note: Authority G.S. 89F-5:
Temporary Adoption Eff. May 15, 1996.
.0103 SEAL OF THE BOARD
The official seal of the Board is the Seal of the State of
North Carolina.
History Note: Authority G.S. 89F-5;
Temporary Adoption Eff. May 15, 1996.
.0104 FEES
Each completed application form shall be accompanied
by the prescribed fee. Application fees shall not be
refunded regardless of Board approval or disapproval of
the application.
( 1 ) application forms for licensing as a Soil Scien-tist,
including a copy of the Licensing Act and
rules J 5.00
application for license 50.00
examination 125.00
license 85.00
shall be addressed to the North Carolina Board for Licens-
£2)
[3]
renewal of license 50.00
ing of Soil Scientists at PO Box 5316, Raleigh. North
Carolina 27650-5316.
(6) restoration of license 1 10.00
(7) replacement of license 50.00
(8) licensed soil scientist seal 30.00
History Note: Authority G.S. 89F-4; 89F-5;
Temporary Adoption Eff. May 15, 1996.
.0102 DUTDZS OF OFFICERS
(a) Chairman. The Chairman shall, when present.
History Note: Authority G.S. 55B-10: 55B-11: S9F-25;
150B-19:
Temporary Adoption Eff. May 15, 1996.
200 NORTH CAROLINA REGISTER May 15, 1996 11:4
TEMPORARY RULES
SECTION .0200 - LICENSING OF SOIL
SCIENTISTS
.0201 APPLICATION PROCEDURE
(a) All applicants for licensing shall furnish the follow-ing:
(1) A legible official copy of their college tran-script(
s). and verification of graduation sent
directly from the institution to the Board;
(2) A record of experience in the practice of soil
science including any of the applicant's written
reports, maps, published articles or other materi-als
the Board determines are appropriate to
document the applicant's experience as a soil
scientist;
(3) Four references as defined in G.S. 89F-10(a)( 1 );
(4) Signed copy of Code of Professional Conduct;
(5) A notarized copy of a completed application
form; and
(6) The application fee as prescribed in Rule .0104
of this Chapter.
(b) Applicants for licensing under comity shall submit
an application form along with the prescribed fee. The
Board may require the submittal of additional information
if necessary to determine if the applicant meets the require-ments
of G.S. 89F.
(c) Applicants for reinstatement of an expired license
shall submit a reinstatement application and the prescribed
fee.
(d) Applicants for reinstatement of a revoked or sus-pended
license shall submit such information as js required
by the Board, on a case-by-case basis, to determine their
eligibility for reinstatement, and shall submit the prescribed
fee.
(e) Applicants who do not meet the minimum qualifica-tion
for education as defined in G.S. 89F-10 but have a
specific record of J_5 years or more experience jn the
practice of soil science of a grade and character that
indicates to the Board that the applicant is competent to
practice soil science shall be admitted to the written
examination. The applicant shall show evidence of the
practicing experience. Upon passing such examination, the
applicant shall be granted a license to practice soil science
in this State, provided other requirements of G.S. 89F and
the rules in this Chapter are met.
History Note: Authority G.S. 89F-5; 89F-9; 89F-10;
89F-12;
Temporary Adoption Eff. May 15, 1996.
.0202 EXPIRATIONS AND RENEWALS OF
CERTIFICATES
(a) The annual renewal fee of fifty dollars ($50.00) shall
be payable to the Board. The Board shall send to each
licensed soil scientist a form that requires the registrant to
provide the Board with his business and residential address
and to affix the registrant's North Carolina Licensed Soil
Scientist seal thereupon. An applicant for renewal shall
document continuing education as provided in Section
.0300 of this Chapter. The completed forms along with
the required fee shall be forwarded to the Board.
(b) All licenses will expire on July _L Licenses that
have not been renewed by September 1st may only be
renewed by filing a restoration applicat i on and submitting
a restoration fee.
(c) The Soil Scientist-in-Training certificate shall not
expire and therefore does not have to be renewed.
History Note: Authority G. S. 89F-5;
Temporary Adoption Eff. May 15, 1996.
SECTION .0300 - CONTFNUEVG PROFESSIONAL
COMPETENCY
.0301 INTRODUCTION
Every licensee shall meet the continuing professional
education requirements of this Section as a condition for
license renewal.
History Note: Authority G.S. 89F-5;
Temporary Adoption Eff. May 15, 1996.
.0302 DEFINrriONS
Terms used in this Section are defined as follows:
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